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Posts Tagged ‘BAOT’
In my first post I commented on the BAOT quote from Octavia Hill which stated;
“‘The poor should never be denied beauty.’
I ranted there about the judgments and relationships that such a comment represents, although I recognise that socially altruistic benefactors could get away with that kind of thing back then.
I want to look now at the choice of the word “Beauty” and what that means to the profession. It is clear that the BAOT feel it applies or else they would not have chosen this quote.
The word “Beauty” itself can usher in subjective judgments, the eye of the beholder and all that, but I think that if we reduce it down to a very base meaning then it becomes more universal.
Let me give an example. When I was speaking to colleagues here at Harrison Training about this, we felt that beauty could apply to several areas of what we do, including beauty of movement. We are not necessarily talking about high-art concepts of balletic motion, but simply movement with function.
There is a request, for example, on the BAOT page on Facebook, for help on one handed hairwashing. Now, the act of hairwashing itself is of course utterly urbane, but the enabling and delivery of this functional movement would be a beautiful thing for that client.
Beauty can also apply to the central notion of occupation, that sense of experiencing time as being useful or with meaning.
I suspect it was originally used in an artistic sense also, namely that beauty and art are synonymous.
While Octavia Hill was talking about access to beauty and art as being the end goal the profession has moved forward. Art is an integral part of our intervention tool kit, enabling our clients to create meaning and expression.
I am mindful of the use of various art mediums as intervention;
writing both, journalling and creative;
visual art;
physical art; and
musical and percussive art.
That creation of meaning and expression is central to our condition. Just look to today’s news of the ongoing research into using scans of brain activity to enable communication with coma patients. Consider, in particular, this excerpt;
“It is lawful to allow patients in a permanent vegetative state to die by withdrawing all treatment, but if a patient showed they could respond it would not be, even if they made it clear that was what they wanted.”
So, beauty, art and the creation of meaning and expression.
On the other hand, we might all be so busy that the concept of beauty bears no relation to our day to day work? Your thoughts? | 36,700,289 |
Category Archives: Articles
There is no place more exciting, more romantic, and more cosmopolitan than the city of Paris. Paris has thousands of places to explore, dozens of museums, theaters, monuments, bars, clubs, sports centers, and more. Paris is culture, entertainment and diversity all rolled into one. A city that welcomes a multitude of tourists each year, eager…
Every entrepreneur wants to know the secrets to kicking their sales up a notch. The key is doing so quickly and easily. How do you do that? The more visitors you have, the more likely you are to make sales. The key is attracting good prospects. These are people visiting you site with their credit…
Canadians are still chalking up debt, but there is some encouraging news on the credit front. Canadians are starting to pay down their credit cards. This is according to a recent report from Equifax Canada. The report states that the average Canadian cut back 3.4 percent from their credit card debt this past year (2011).…
Basics Mortgage lenders offer many different loan types for people with bad credit. These loan types include: 30 year fixed loans interest only loans minimum payment option loans other mortgage loans 30 Year Fixed Loans This is the traditional mortgage loan. It has a loan term of 30 years and is fixed for 30 years.…
The only way you can become an expert at picking the best candidates suitable for any post is by taking up a course in industrial psychology. It will give you more knowledge on how to deal with the problems that limit the well being of the work place. This skill can be utilized in very…
In the past, building contractors and engineers have been constructing commercial buildings using precast concrete walls, which are now increasingly used in residential housing projects too. Main advantage of precast concrete walls over beloved concrete walls is that precast walls can be built in less time. When a builder uses beloved concert walls, the biggest…
Much has been written about the poverty of the Appalachian mountaineers that make up the Kentucky Highlands. Visitors like to point out the backwardness of the area, the crime, the hopeless of its citizens and the unhappy layout of the unfortunate. Few discuss the reasons for this cultural disease that has afflicted the entire region.…
Winter is coming (no, that is not a Game of Thrones reference) and it is time to start getting that lovely log cabin of yours ready for the bad weather around the corner. Wooden houses are awesome as they are high value, beautiful, sturdy and a dream home for many. Unfortunately they require a bit…
Did you know you can combine two loves: of cooking and nature, by investing in the best, most durable and all-weather outdoor cooking equipment? Well, it's true; many people love the thought of summer approaching simply because it gives them a chance to head out the doors and whip up some great family meals because…
I don’t understand this one. Well, actually I do understand it. Which is why it’s such a hard perception to tackle. People want the bodies of the models they see on TV. Some guys want to be big, but just about all women who train want that elusive “tone” where muscles are long and smooth…
Have you wanted to try painting with watercolors but don’t know how to get started? If you have seen different watercolor paintings, you might have noticed the many varied types and techniques used. It might make it seem as if watercolors might be too complicated, but do not fear. The key is to find lessons…
Knuckleboom trucks versatility and efficiency have made such pieces of equipment popular in the commercial vehicle market especially when compared to the traditional stiff-boom types. Also, when compared to the stiff-boom versions, knuckleboom trucks are much lighter yet function very efficiently loading and unloading heavy material from one location to another. The astonishing proficiency of…
A recent survey revealed that approximately 30 percent of homeowners intend to sell without a real estate agent. I bet more would if they didn’t fear the contract side of the process. It is undisputed that you can save tens of thousands of dollars by selling your home without an agent. Typical commission fees charged…
Have you been thinking that drinking water containers are a good choice for simple and inexpensive way to take your water with you? A drinking water container can provide you with a measure of convenience. There are a few things that you should know before buying one; though. I'm naturally going on the assumption that… | 36,700,367 |
With iPhone and custom apps developed with the SAP Cloud Platform SDK for iOS, SKF has simplified core business processes, increased employee productivity, and eliminated production errors in the channel. Factory workers are more mobile and enjoy a user experience that simply wasn’t possible before with seamless access to SAP systems. | 36,700,386 |
iAMerican
In the first episode of the second season of British television show, The Hour its protagonist, Freddie Lyon upon returning from America explains why he was intoxicated by the new world:
“Being nobody in a country where everybody thinks they can be somebody…”
That one utterance by a fictional character sums up why every immigrant wants to come to America and that does include me. This is the country where Albert Einstein and Nicola Tesla were somebody. This is the place where Kim Kardashian and Alex Rodriguez are somebody. Kanye West and Steve Jobs, they are somebody. At one point they were nobodies. This quirky, burger munching, frappuccino swigging, football loving, gas-guzzling cross between utopia and Disney Land is a nation of nobodies who are on their way to be somebody.
And that is the beauty of America.
On a globe, America is a landmass, a country. In an immigrant’s heart it is a belief that future is almost always better. It may not be perfect and it is certainly not equal, but it still is one of a kind — the only place where an absolute stranger with a funny name and a funny accent with no friends or contacts can show up, work hard and actually get to do what he was destined to do.
That America is the place, I can now officially call home.
Today, in a ceremony at the Paramount Theater in Oakland, California, I was sworn in along with 1224 others and we became Americans. I am still memorizing the Star Spangled Banner and trying to imprint the oath of allegiance on my heart, but I have always known that I was an American.
Long before I left my parents home, in those hot summer nights when I read American magazines and dreamed of New York, I knew where I belonged. That America was brought alive by pulp fiction and noir writers. America was Michael Jackson. America was Wall Street. America was Tom Wolfe’s Electric Acid Kool Aid Test and his Bonfire of Vanities. America was Bell Labs. It was Bruce Springsteen.
The America I found was a kaleidoscope of all those fictions and many more realities. Random acts of kindness from absolute strangers, failures that taught more than successes, disappointments that taught the meaning of joy, but most importantly the America I found was a place where my mind could finally roam free. It was a place where I learned that tomorrow is another opportunity.
I didn’t come here for some canned version of an American dream — a two car garage and a house in the suburbs. It certainly wasn’t about getting rich. And it wasn’t about snapping a selfie with Scarlett Johansen (though it would be supercool). Instead, it was about the promise that people should have a chance to attain their hopes and dreams.
In most places in the world, outsiders like me don’t have that chance. That simple truth is what makes America so special. A chance – to be somebody even if you are nobody. America is a state of mind and I have opted-in! | 36,700,618 |
724 S.E.2d 699 (2012)
283 Va. 594
Lisa LAWS
v.
Calvin McILROY, Jr.
Carmen Tinker
v.
Calvin McIlroy, Jr.
Record Nos. 110485, 110646.
Supreme Court of Virginia.
April 20, 2012.
*700 Jeffrey M. Summons for appellants.
B. Craig Dunkum (Stark, Dunkum & Stark, on brief), for appellee.
Present: All the Justices.
Opinion by Justice DONALD W. LEMONS.
In these appeals, we consider whether the Circuit Court of Buckingham County (the "circuit court") erred when it granted motions to dismiss filed by the individual defendant Calvin McIlroy, Jr. ("McIlroy"), the plea in bar filed by Government Employees Insurance Company ("GEICO"), and the motion to dismiss lodged by State Farm Mutual Automobile Insurance Company ("State Farm"), all relying on Code § 8.01-229(E)(3).
I. Facts and Proceedings Below
On May 21, 2008, Lisa Laws ("Laws") and Carmen Tinker ("Tinker") each filed a complaint against McIlroy and Calvin McIlroy, Sr. ("McIlroy Sr.") in the circuit court for damages arising out of a motor vehicle accident that occurred on June 8, 2007. The complaints alleged that Laws was a passenger in a vehicle operated by Tinker and that McIlroy "negligently and carelessly" operated a vehicle that struck the rear of Tinker's vehicle. The complaints further alleged that McIlroy Sr., who owned the vehicle operated by McIlroy, negligently entrusted his vehicle to McIlroy. GEICO and State Farm, the potential uninsured/underinsured motorist carriers, were served with a copy of Laws' *701 complaint and State Farm was served with a copy of Tinker's complaint.[1]
Laws and Tinker each submitted an order of nonsuit to the circuit court on January 8, 2010, but these orders were not entered. Both Laws and Tinker indicated in their respective written statement of facts, filed in the circuit court pursuant to Rule 5:11(e), that the nonsuit orders were required to be resubmitted. McIlroy stated in his objections to the statements of facts that the nonsuit orders forwarded to him "and presumably to the Court, on or about January 8, 2010 were not endorsed by counsel for the plaintiff or by defense counsel." The nonsuit orders were resubmitted on January 28, 2010, with the endorsements of all counsel. The circuit court entered the nonsuit orders on February 4, 2010.
Significantly, Laws and Tinker filed second, identical lawsuits in the circuit court on January 19, 2010, before the nonsuit orders were entered by the circuit court.[2] Thereafter, McIlroy filed answers to both Laws' and Tinker's second complaints. GEICO and State Farm also filed answers to the second complaints pursuant to Code § 38.2-2206(F).
State Farm subsequently filed a motion for leave to amend its answer to include the statute of limitations as an affirmative defense. Although the circuit court did not rule on State Farm's motion to amend, State Farm filed an amended answer. The only difference between State Farm's answer and its amended answer was that the amended answer stated "[t]he Company specifically asserts the defense of statute of limitations."
McIlroy then filed motions to dismiss the complaints, arguing that both cases were "barred by the applicable [two year] statute of limitations and must be dismissed" and that Code § 8.01-229(E)(3)'s tolling provision did not apply in either case because it "clearly states that a plaintiff has six months to refile after the Court has entered a nonsuit order." (Emphasis added.) McIlroy also argued in his motions to dismiss that because "no nonsuit order[s] w[ere] entered at the time the Second Action[s were] filed, [Laws and Tinker] cannot take advantage of the tolling provisions." Additionally, GEICO filed a plea in bar and State Farm filed a motion to dismiss, and both insurance companies raised the same arguments made by McIlroy in his motions to dismiss.
Thereafter, the circuit court held that Laws' and Tinker's January 19, 2010 complaints were not timely filed pursuant to Code §§ 8.01-229(E)(3) and 8.01-243. Consequently, the circuit court granted McIlroy's motions to dismiss and entered final orders dismissing the actions with prejudice.
Laws and Tinker timely filed their notices of appeal, and we granted these appeals on the following assignments of error: For Lisa Laws v. Calvin McIlroy, Jr., Record No. 110485:
1. The trial court erroneously interpreted Code § 8.01-229 and Virginia law when considering McIlroy's motion to dismiss and GEICO's plea in bar. As a result, it improperly dismissed the case.
For Carmen Tinker v. Calvin McIlroy, Jr., Record No. 110646:
1. The trial court erroneously interpreted Code § 8.01-229 and Virginia law when considering McIlroy's and State Farm's motions to dismiss. As a result, it improperly dismissed the case.
2. The trial court erroneously considered State Farm's motion to dismiss without first allowing the amendment of the company's answer to include the affirmative defense of the statute of limitations.
II. Analysis
A. Standard of Review
Well-settled principles of statutory review guide our analysis in this case.
*702 [A]n issue of statutory interpretation is a pure question of law which we review de novo. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted). Moreover, "[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction." Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (citation and internal quotation marks omitted).
B. Interpretation of Code § 8.01-229(E)(3)
Laws' and Tinker's negligence actions are governed by the two-year statute of limitations for personal injuries. Code § 8.01-243(A). The statute of limitations begins to run when the cause of action accrues, which, here, is "the date the injury is sustained in the case of injury to the person." Code § 8.01-230. Laws and Tinker each sued McIlroy for personal injuries sustained in a motor vehicle accident that occurred on June 8, 2007. Because Laws' and Tinker's causes of actions "accrued" on June 8, 2007, they had until June 8, 2009, to file their respective complaints absent an event tolling the statute of limitations. Code §§ 8.01-230 and -243(A); Code § 1-210(A).
Code § 8.01-229(E)(3) deals generally with the subject of tolling statutes of limitations and provides, in relevant part,
If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01-380, the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation,... whichever period is longer.
(Emphasis added.)
Pursuant to Code § 8.01-380(A), a plaintiff is permitted one nonsuit as a matter of right if "he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for a decision." Laws and Tinker each filed their second complaints against McIlroy and the other defendants named in their initial complaints on January 19, 2010; however, the nonsuit orders in their original cases were not entered by the circuit court until February 4, 2010, after Laws and Tinker refiled their respective complaints.
On appeal, Laws and Tinker argue in their briefs that the "tolling statute does not say within the six months following or after the date of the order; it simply says within six months of the order." (Emphasis in original.) As a result, Laws and Tinker also argue that the circuit court erred in granting McIlroy's motions to dismiss, GEICO's plea in bar, and State Farm's motion to dismiss because they refiled their respective complaints on January 19, 2010, which was within six months of the date the circuit court entered the nonsuit orders, February 4, 2010. We agree.
Code § 8.01-229(E)(3) states that a "plaintiff may recommence [an] action within six months from the date of the order entered by the court." Code § 8.01-229(E)(3) (emphasis added). "Recommence" means "to undergo a new beginning" or to "start up again." Webster's Third New International Dictionary 1897 (1993). "From" is "used as a function word to indicate a starting point." Id. at 913. We have always characterized an action filed in relation to a nonsuit as a "new" action. A "new action stands independently of any prior nonsuited action." Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010).
Additionally, we have recognized the permissibility of two identical suits pending in different venues in Moore v. Gillis, 239 Va. 239, 389 S.E.2d 453 (1990). In Moore, an inmate (Moore) sued a correctional officer for personal injuries. The first suit was brought *703 in the Circuit Court of the City of Richmond. Id. at 240, 389 S.E.2d at 453. The trial court granted the correctional officer's (Gillis') motion to transfer venue of the action to the Circuit Court of Brunswick County. Before the transfer order was entered, Moore filed another motion for judgment on the same claim in the Circuit Court of the City of Richmond. Id. Both actions remained pending, one in the City of Richmond and the other in Brunswick County, for almost one year. Moore then nonsuited the first action which had been transferred and was then pending in Brunswick County. Id. Several months later, the Circuit Court of the City of Richmond, "acting on its own motion," held that it lacked jurisdiction to "hear the new proceeding," which was the second suit filed in Richmond, and dismissed Moore's second action. Id. (internal quotation marks omitted).
Moore argued on appeal that he had the right to file the second action because the first one, which had been transferred to Brunswick County, had not yet been nonsuited. Id. at 241, 389 S.E.2d at 453. In this respect, the Moore case is identical to the facts of the two cases before us today. Significantly, we held in Moore, "In this case, the second proceeding was an existing proceeding, not a new one, brought before, not after, the nonsuit was taken in the action previously filed." Id. at 242, 389 S.E.2d at 454 (emphasis in original). We reversed the judgment of the Circuit Court of the City of Richmond and remanded the case for the second action to proceed. In the process, we made it clear that it was not necessary for the first action to have been dismissed or nonsuited in order for the second action to retain its validity:
The narrow question in this case ... is whether the General Assembly intended the limitation [of the nonsuit statute] to be so sweeping in effect that it would prohibit the prosecution of a proceeding filed before a nonsuit is taken in a pending action covering the same claim.
....
[W]e hold that the limitation in question was not intended to apply to the sort of situation presented here.
Id. at 241-42, 389 S.E.2d at 454.
Additionally, the word "from" in Code § 8.01-229(E)(3) is a "starting point," but nothing in the statute requires that movement from this point has to be forward in time rather than backward. We need only look at case law to determine that the word "from" has been frequently used to measure time before a specific event:
On the day of the hearing, Jack was 36 days away from his fourteenth birthday. Deahl v. Winchester Dept. Soc. Servs., 224 Va. 664, 669, 299 S.E.2d 863, 865 (1983).
It is true that two other inmates have been on death row for several years. The fact remains, however, that a death sentence may be imposed within 30 days after conviction and as the record indicated, one inmate, Earl Washington, was fourteen days away from execution when an attorney was provided to him through the efforts of Ms. Deans and Giarratano. It is reasonable to believe that if they had not found an attorney, the inmate would have been executed on the date originally set. Giarratano v. Murray, 836 F.2d 1421, 1430 (4th Cir.1988) (Hall, J., concurring in part and dissenting in part).
At the time of marriage, husband was one month away from mandatory retirement with United Airlines (United), where he was a pilot for approximately thirty-five years. Ghods v. Musick [2005 WL 588338, at *1], 2005 Va.App. LEXIS 103, at *3 (Va.Ct.App. March 15, 2005).
S.G. has moved to Florida [and] is now only months away from her 18th birthday and, presumably, from her high school graduation. Camreta v. Greene, 563 U.S. ___, 130 [131] S.Ct. 2020, 2034 [179 L.Ed.2d 1118] (2011).
At the time of the transfer in April 2002, AW was just months away from graduating from sixth grade and moving on to the seventh grade at another school. AW ex rel. Wilson v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 684 n. 11 (4th Cir.2004).
When Lily tried to file her claim, the case was at a preliminary standstillit had *704 been stayed in its infancy pending resolution of the criminal charges and was months away from trial. United States v. Borromeo, 945 F.2d 750, 754 (4th Cir. 1991).
She was only months away from turning twelve, the lawful age for paper carriers in Virginia. Howarth v. Rockingham Pub. Co., 20 F.Supp.2d 959, 968 (W.D.Va.1998).
At the time of the April 2001 trial, two of Smitley's dependents were 17 years old just one year away from majorityand another was also a teenager, leaving only one child under the age of 10. U.S. Dept. of Health & Human Servs. v. Smitley, 347 F.3d 109, 124 (4th Cir.2003).
Henson was notified on May 14, 1992, that her job would be eliminated and her department outsourced, i.e., contracted to an independent contractor. Plaintiff was fifty years old at the time, five years away from being able to retire with full benefits. Henson v. Liggett Group, Inc., 61 F.3d 270, 273 (4th Cir.1995).
Arthur Walker replied that he could provide information concerning when a Navy ship was approximately one year away from a scheduled overhaul. United States v. Walker, 796 F.2d 43, 45-46 (4th Cir. 1986).
GEICO, State Farm, and McIlroy rely upon the memorandum opinion from the United States District Court for the Western District of Virginia ("District Court") in Payne v. Brake, 337 F.Supp.2d 800 (W.D.Va. 2004), which stated, "Virginia Code § 8.01-229(E)(3) clearly states that a plaintiff has six months to refile after the Court has entered a nonsuit order." Id. at 803 (emphasis in original). However, the statute clearly states that the new action must be filed "within six months from the date of the order" not "after" the date of the order. Code § 8.01-229(E)(3).
The suits filed by Laws and Tinker on January 19, 2010, were commenced "within" 6 months from the date of the order of nonsuit and therefore were governed by the plain and express language in the provisions of Code § 8.01-229(E)(3). Accordingly, the trial court erred in granting the motions to dismiss and the plea based upon the statute of limitations.
As a result of our holding, it is unnecessary to address Tinker's second assignment of error.
III. Conclusion
We hold that the circuit court erred when it granted McIlroy's motions to dismiss, State Farm's motion to dismiss, and GEICO's plea in bar. Accordingly, we will reverse the judgment of the circuit court and remand for further proceedings.
Reversed and remanded.
Justice MILLETTE, with whom Chief Justice KINSER and Justice McCLANAHAN join, dissenting.
Today the majority holds that a plaintiff may avail himself of Code § 8.01-229(E)(3)'s tolling provision so long as he files his second action no sooner than six months before, and no later than six months after, the order nonsuiting his first action is entered. In doing so, the majority ignores the very principle of statutory construction that it claims to apply, namely, that "[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction." Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (internal quotation marks and citation omitted). I respectfully dissent.
I.
A.
Lisa Laws and Carmen Tinker (collectively, Plaintiffs) contend, and the majority agrees, that the circuit court erred in holding that their second actions were time-barred because Code § 8.01-229(E)(3) does not say that a second action must be filed "within the six months following or after the date of the [nonsuit] order." That statute, they maintain, "simply does not say that filing of the second [action] must follow the nonsuit order."
The Plaintiffs and the majority ignore the plain language enacted by the General Assembly in Code § 8.01-229(E)(3). That statute, in relevant part, provides:
*705 If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01-380, the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation... whichever period is longer.
Code § 8.01-229(E)(3) (emphasis added). By using "recommence" and "from," I believe that the General Assembly made its intention clear that a plaintiff must file his second action after the order nonsuiting his first action is entered by the trial court, in order to take advantage of the statute's tolling provision.
Neither "recommence" nor "from" is defined in Code § 8.01-229. Pursuant to the rules of statutory construction, then, they must be read in accordance with their "ordinary meaning." Ruby v. Cashnet, Inc., 281 Va. 604, 609, 708 S.E.2d 871, 874 (2011) (internal quotation marks and citation omitted); see also Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998) ("When ... a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the plain meaning of the language used."). "Recommence" means "to undergo a new beginning," to "start up again," or to "commence again." Webster's Third New International Dictionary 1897 (1993). And "from" is "used as a function word to indicate a starting point." Id. at 913.
Although the majority recites these definitions of "recommence" and "from," it interprets each word in a way that is at odds with its ordinary meaning. First, the majority reads "recommence" as meaning nothing more than "commence" because, as it reads our case law, "an action filed in relation to a nonsuit [is] a `new' action." While it is true that a second action "stands independently of any prior nonsuited action" insofar as new claims and defenses may be asserted, Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010), it does not follow that a plaintiff may gain the benefit of Code § 8.01-229(E)(3)'s tolling provision by filing his second action before his first action is actually nonsuited.
On the contrary, Code § 8.01-229(E)(3) speaks only of the "recommence[ment]" of an action. Logically, a plaintiff may not "start up again" or "commence again" an action that has not yet ended. Webster's, at 1897. And an action does not end until the trial court enters an order nonsuiting (or otherwise terminating) it. Nash v. Jewell, 227 Va. 230, 237, 315 S.E.2d 825, 829 (1984) ("There is no termination of litigation until the court enters [a nonsuit] order."). Thus, the Plaintiffs here could not have "recommence[d]" their actions within the meaning of the statute when they filed their second actions, since the orders nonsuiting their first actions had not yet been entered by the trial court.
In support of its position that a plaintiff may file his second action before nonsuiting his first action, the majority relies on Moore v. Gillis, 239 Va. 239, 389 S.E.2d 453 (1990). In that case, however, the plaintiff filed his second action within the applicable two-year statute of limitations, and thus did not need the benefit of Code § 8.01-229(E)(3)'s tolling provision. Id. at 240, 389 S.E.2d at 453. As a result, the only question before the Court was whether the nonsuit statute, Code § 8.01-380(A), limited the plaintiff's choice of venue for his second action. Id. And the Court held that it did not because the plaintiff filed his second action before, not after, nonsuiting his first action. Id. at 241, 389 S.E.2d at 454. Our holding in Moore, then, has no bearing on the question presented in these caseswhether a plaintiff may avail himself of Code § 8.01-229(E)(3)'s tolling provision if he files his second action before the order nonsuiting his first action is entered.
The majority next construes "from." Although the majority acknowledges that the word marks a "starting point," it goes on to say that for purposes of Code § 8.01-229(E)(3) movement from that point may be forward or backward in time. This reading of "from" is curious, in my view, for it runs contrary to common usage. One simply does not use the word to count backward in time. For instance, it would be odd for one to say, "George W. Bush served as president of the *706 United States from 2009 to 2001." Further, if one wanted to refer to an event that occurred six months in the past, he would not say, "six months from today," but rather, "six months ago."
The majority attempts to justify its use of "from" as a basis for counting backward in time by citing several cases from this and other courts in which "away from" is used to calculate time. Not one of those cases, however, supports the majority's construction of Code § 8.01-229(E)(3). To begin with, the statute does not say "away from"; it says "from." Nevertheless, as demonstrated by each case cited by the majority, "away from" is used to count forward, not backward, in time. In one of the cited cases, for instance, the United States Court of Appeals for the Fourth Circuit writes, "Arthur Walker replied that he could provide information concerning when a Navy ship was approximately one year away from a scheduled overhaul." United States v. Walker, 796 F.2d 43, 45-46 (4th Cir.1986). Read in context, it is clear that the Fourth Circuit was using "away from" to refer to a future, not a past, event. It is no different from one saying, "the country is roughly three months away from its annual July 4th celebration of independence." As in Walker, there is no question that "away from" is being used in this example to look forward, rather than backward, in time.
The majority's construction of Code § 8.01-229(E)(3), moreover, fails to account for the language of the nonsuit statute itself. Code § 8.01-380(A) provides in relevant part: "After a nonsuit no new proceeding on the same cause of action or against the same party shall be had in any court other than that in which the nonsuit was taken." (Emphasis added.) This language clearly contemplates that the "new proceeding" or second action is filed after, not before, the order nonsuiting the first action is entered.
Finally, the majority criticizes the United States District Court for the Western District of Virginia for concluding, in Payne v. Brake, 337 F.Supp.2d 800 (W.D.Va.2004), that "Code § 8.01-229(E)(3) clearly states that a plaintiff has six months to refile after the Court has entered a nonsuit order." Id. at 803. Yet every court that has construed the statute or addressed it before today has read it in this manner, including this one. See, e.g., Janvier v. Arminio, 272 Va. 353, 364, 634 S.E.2d 754, 759 (2006) ("Upon suffering the first nonsuit, Code § 8.01-229(E)(3) permitted Janvier to recommence her malpractice action within six months from June 3, 2002, the date of the entry of that nonsuit order."). And for good reason: that interpretation is in accord with common usage, whereas the majority's is not.
B.
The whole point of Code § 8.01-229(E)(3) is to revive actions that would otherwise be barred by the applicable statute of limitations. Why then would the General Assembly want to give a plaintiff up to six months before his first action is nonsuited, to file his second action? Further, as a practical matter, how would a plaintiff even know that he is filing his second action no sooner than six months before his first action is nonsuited when the starting point for that time calculation (the entry of the nonsuit order) has yet to be fixed? It is hard for me to believe that this is what the General Assembly intended when it enacted the statute, and I am concerned about the mischief that may result from such an interpretation. Because our responsibility in interpreting any statute "is to ascertain and give effect to legislative intent," Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010) (internal quotation marks and citation omitted), I find the majority's holding untenable.
C.
I recognize that reading Code § 8.01-229(E)(3) to mean what it saysthat a plaintiff must file his second action after the order nonsuiting his first action is enteredleads to a harsh result in these cases, namely, dismissal, especially considering that there is no evidence that the other parties involved were prejudiced by the Plaintiffs' filing of their second actions before the entry of the orders nonsuiting their first actions. But it is not this Court's place to amend the statute under the guise of statutory construction, in order to avoid what appears to be an unfair result. See Beck v. Shelton, 267 Va. 482, 488, *707 593 S.E.2d 195, 198 (2004). Time and again, the Court has decided cases that led to similar results because the unambiguous language of a statute commanded that it do so. As in these cases, relief from such results rests not in our hands, but in the hands of the General Assemblythe only branch of government empowered to change the language of statutes. See, e.g., J.W. Woolard Mechanical & Plumbing, Inc. v. Jones Dev. Corp., 235 Va. 333, 339, 367 S.E.2d 501, 505 (1988) (discussing amendments that the General Assembly made to a licensing statute, in order to "avoid the harsh result dictated by the original form of the statute and reflected" in the cases construing it).
In sum, I believe that the plain language of Code § 8.01-229(E)(3) indicates that the General Assembly intended that a plaintiff file his second action after, not before, the order nonsuiting his first action is entered by the trial court. Had the General Assembly intended otherwise, it could have very easily included language in the statute so providing. For instance, it could have included language similar to that found in Rule 5:9, which states that a notice of appeal filed before the entry of final judgment "is treated as filed on the date of and after the entry." But it did not. The language of the statute simply does not support the majority's holding that a plaintiff may file his second action up to six months before his first action is nonsuited.
Thus, because the Plaintiffs in these cases filed their second actions before the orders nonsuiting their first actions were entered, I find no error in the circuit court's judgments dismissing the second actions as time-barred.
II.
Since I do not believe that the circuit court's interpretation of Code § 8.01-229(E)(3) was in error, I must address Tinker's second assignment of error. Tinker asserts that the circuit court erred in granting State Farm Mutual Automobile Insurance Company's motion to dismiss without first granting its motion to amend its pleadings to add the statute of limitations as an affirmative defense. Calvin McIlroy, Jr., a defendant below and appellee here, responds that any issues relating to State Farm's defenses were rendered moot when the claims against him were dismissed.
I agree with McIlroy. Tinker had no claim against State Farm, the uninsured/underinsured carrier, unless and until she obtained a judgment against McIlroy. So once Tinker's claims against McIlroy were dismissed, State Farm's contingent liability was eliminated. Consequently, any error that the circuit court committed in granting State Farm's motion to dismiss without first granting its motion to amend was harmless, for there simply could not have been any prejudice to Tinker.
III.
For the foregoing reasons, I would affirm the circuit court's judgments in these consolidated cases dismissing the Plaintiffs' second actions as time-barred.
NOTES
[1] On February 2, 2009, the circuit court entered nonsuit orders and dismissed the actions without prejudice as to defendant McIlroy Sr. These orders are not the subject of these appeals.
[2] McIlroy Sr. filed special pleas of the statute of limitations in the second lawsuits. The circuit court entered orders dismissing the actions against McIlroy Sr. with prejudice. No appeals from these orders were noted.
| 36,700,746 |
Safeguarding the quality and safety of reproductive services for human immunodeficiency virus-positive adults.
Throughout the world, adults with HIV are living longer, and many are assessing their options for reproduction. The growing body of scientific evidence and commentary concerning the outcomes of infertility services provided to these adults demands systematic summary and long-term surveillance if safety, quality, and benefit are to be assured. | 36,700,830 |
Story highlights Bioluminescence turns Australia town's shores florescent blue
The phenomenon is created by billions of marine organisms that are lighting up in the dark
(CNN) The shores of Hobart, Tasmania, have been twinkling a bright, neon blue the past few days, turning the water's surface into a scene that looks out of this world.
Photographers have flocked to the glowing waters to witness the bioluminescent phenomenon firsthand.
Jo Malcomson, owner of Blackpaw Photography , splashed in the water Monday while capturing the bright display at South Arm, a town on the outskirts of Hobart.
"It was very much like entering into a magical wonderland. It's a childlike wondrous experience, which completely absorbs one's attention and captures one's imagination," she said.
The bioluminescence is caused by blooms of large single-cell organisms called dinoflagellates. The particular dinoflagellate glowing in the Australian waters is the Noctiluca scintillans species.
Read More | 36,700,953 |
People sometimes forget things. John Kerry admitted in 1971 that he threw his combat medals over the fence of the U.S. capitol building in protest of the Vietnam war. He later recanted this in 1984 when he ran for Senate claiming he threw another veterans medals over the fence instead and still has his. | 36,701,572 |
Q:
Array transformation in JS
I have array transformation required as below in JS.
Source Array
var numbers =
[
[0,0,4],
[0,1,9],
[0,2,16] ,
[0,2,7] ,
[0,2,5] ,
[1,0,1],
[1,1,2],
[1,1,4],
[1,2,3]
];
Here first value in the source array represents row of target array, second value represents column of target array.
So the expected result array looks like
var result = [
[4, 9, [16, 7, 5]],
[1, [2, 4], 3]
];
Note:
1.Source/Target array can contain N number of rows & columns.
A:
You could reduce the array and check the target element and assign the value or take an array.
var numbers = [[0, 0, 4], [0, 1, 9], [0, 2, 16], [0, 2, 7], [0, 2, 5], [1, 0, 1], [1, 1, 2], [1, 1, 4], [1, 2, 3]],
result = numbers.reduce((r, [i, j, v]) => {
r[i] = r[i] || [];
r[i][j] = r[i][j] === undefined
? v
: [].concat(r[i][j], v);
return r;
}, []);
console.log(result);
.as-console-wrapper { max-height: 100% !important; top: 0; }
| 36,701,842 |
Respiratory
Sub-Theme: Lung infection
Sub-Theme Leaders: Najib Rahman
Key Researchers: Nikolaos Kanellakis
While the clinical entity of pneumonia is well established and easy to diagnose, the underlying cause is rarely established. Microbiological proof from blood culture or bronchoalveolar lavage is available in as few as 10% of cases and treatment is, in most cases, empirical. We want to better characterise the inflammatory and microbiological process associated with pneumonia.
In patients with pneumonia, fluid accumulates around the infected lung in 40% of cases (uninfected exudate), and in around 10% frankly infected pleural fluid develops (empyema). This requires chest tube drainage or surgery and is associated with a high morbidity and mortality. We aim to investigate the mechanisms and pathways responsible for progression from uninfected exudate to frank empyema.
This subtheme aims to investigate the mechanisms of lung parenchymal and pleural infection and to identify new targets for treatment by:
Establishing a highly characterised cohort of patients in whom we will define the true microbiological burden of this disease.
Investigating the pathway from uninfected exudate to frank empyema by comparing the genetic and protein profile, carrying out a full molecular microbiological assessment, evaluating anatomical factors using CT and ultrasound and determining inflammatory and genetic factors associated with the host response. | 36,701,929 |
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