Defendants in civil litigation know that the only way to guarantee victory is to keep the plaintiff from having their day in court.
So as soon as you file a civil action stating your cause of action and seeking damages for personal injury, the defendant and their insurance company will look for a way to dismiss it.
One potential response to your complaint is a preliminary motion called a plea in bar.
A plea in bar is a defensive pleading that attempts to reduce the litigation to a single issue of fact, which, if proven, bars you from recovering money.
Generally, your claim is defeated entirely when a court sustains the defendant’s plea in bar. But there are some exceptions.
This article discusses which court rules and case law govern pleas in bar in Virginia, focusing on when defendants use them in negligence and tort claims.
Keep reading to learn more.
Then call me if you have questions about your auto accident, product liability, or workers comp case.
A plea in bar is a formal written statement (a pleading) asserting an affirmative defense to one or more of the causes of action alleged in your complaint.
Its purpose is to decide factual issues whose determination may end or limit pending your lawsuit when applied to existing legal principles.
A plea in bar may apply to your entire complaint or just one cause of action.
No.
Although a plea in bar and an answer to a complaint are both responsive pleadings, the Supreme Court of Virginia has distinguished the two, saying:
[A] plea, whether at law or in equity, is a discrete form of defensive pleading. As distinguished from an answer or grounds of defense, it does not address the merits of the issues raised by the bill of complaint or the motion for judgment. Yet, a plea is a pleading which alleges a single state of facts or circumstances (usually not disclosed or disclosed only in part by the record) which, if proven, constitutes an absolute defense to the claim.
The party asserting the plea has the burden of proof.
In Virginia, parties may file pleas in bar in many civil proceedings, such as cases involving the following:
But deadlines apply.
Rule 3:8 of the Rules of the Supreme Court of Virginia explains how much time a defendant has to file a plea in bar.
This rule, titled Answers, Pleas, Demurrers, and Motions, says that defendants must file pleadings in response (including a demurrer, plea, motion to dismiss, request for a bill of particulars, or a motion craving oyer) – within 21 days after service of the summons and complaint on the defendant. However, extended deadlines apply if the defendant waives service or was addressed outside the Commonwealth.
No.
Although once allowed, Virginia no longer permits pleas of the “general issue” or “[a] general denial of the entire complaint.” For example, in a 2021 judicial opinion, a Fairfax County Circuit Court held that the defendant’s purported plea in bar was nothing more than a general denial because it failed to set out adequate facts.
But defendants may use special pleas to present a single issue that would serve as a complete defense to some (or all) of your causes of action.
Here is a list that includes common affirmative defenses raised by defendants in pleas in bar.
Civil lawsuits seeking damages for work-related injuries often result in the defense filing a plea in bar unless the defendants were “strangers to the work.”
So, although you will likely be able to proceed with a lawsuit against the defendant driver in a work-related automobile crash, you could have problems in other situations.
Let’s look at examples involving lawsuits arising from workplace violence and coworker negligence.
A recent event shows how employers use the plea in bar to limit employees to workers compensation benefits for injuries resulting from violence on the job.
One of the surviving employees, Donya Prioleau, sued Walmart Inc. for damages, alleging negligent hiring and retention of the gunman and respondeat superior liability (a legal doctrine holding an employer legally responsible for the wrongful acts of an employee or agent).
Walmart’s response included a plea in bar, which argued that the exclusivity provision of the Workers Compensation Act bars Prioleau’s tort claims. This provision, titled Employee’s Rights under Act Exclude All Others; Exception, is found in Virginia Code Section 65.2-307(A). It states the following:
The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.
Walmart argues that the gunman shot his coworkers due to their employment with Walmart; therefore, injuries from the shooting arose from Prioleau’s employment. And as such, Prioleau’s sole remedy for her work-related injuries is the Workers Compensation Act.
We will see how this litigation plays out.
Abby Zwerner, the first-grade teacher shot by a six-year-old student at Richneck Elementary School in Newport News, Virginia, in January 2023, may face a similar plea in bar if she files a lawsuit against the Newport News Public Schools System.
During a press conference alleging that school administrators received warning that the student had a gun and was threatening people but failed to act, Zwerner’s lawyer announced that a lawsuit would be forthcoming.
If sued, Newport News Public Schools may follow Walmart’s path in Prioleau’s case, raising a plea in bar asserting that workers comp is Zwerner’s sole remedy against it.
However, unlike Prioleau, Zwerner may be able to use the state-created danger doctrine or other theories to hold her employer and others liable.
Pleas in bar are common in lawsuits arising from injuries on a construction site.
Here is an example of how it works.
You are an electrician helping to construct an industrial facility. And you suffer a back injury, concussion, and rotator cuff tear when the crane operator on the site makes a mistake, smashing a beam into you.
In this situation, you will be eligible for workers comp benefits from your employer, including temporary total, permanent partial disability, and lifetime medical treatment for occupational injuries.
But you may also want to sue the crane operator, an employee of a different subcontractor on the job site. This lawsuit is called a third-party action.
Unfortunately, you may have a problem if the defendant files a plea in bar, alleging that workers comp is your only remedy.
In David White Crane Service v. Howell, the Supreme Court of Virginia held that the Workers Compensation Act’s purpose is to bring within it “all those who are engaged in the work that is a part of the owner’s or general contractor’s trade, business, or occupation.” And therefore, an injured worker’s sole remedy for job-related injuries caused by statutory co-employees (including independent contractors, subcontractors, and their employees) is workers comp.
In this situation, therefore, you must prove that the defendant was a stranger to the work to defeat the plea in bar.
Litigants have several options for proving or resisting the plea.
First, the parties may ask the court to rule on the pleadings (similar to a demurrer).
This option makes sense if the parties stipulate the relevant facts.
Second, either party may demand a jury trial to decide the factual issues raised by the plea. But a trial by jury is appropriate only if a party disputes the underlying facts.
And third, the trial court judge may take evidence on a plea during an oral argument. In this situation, the judge acts as the factfinder.
Yes, either party can appeal an unfavorable ruling on the plea.
But the applicable appellate review standard changes depending on whether the parties presented evidence or relied on the pleadings.
If the parties presented evidence on the plea, the trial court’s factual findings get the same weight as a jury finding. And the appellate court will only disturb these findings if they are plainly wrong or without evidentiary support.
However, the appellate court reviews the trial court’s judgment de novo if the lower court relied only on the pleadings. De novo means the appellate court gives no weight to the lower court’s rulings and accepts the facts in the complaint as true.
As the plaintiff, you want the court to enter an order overruling the plea in bar. This order means you can proceed with your case.
Within 21 days of the order’s entry, the defendant must file an answer to your complaint.
Then the case moves to the discovery phase.
A defendant’s plea in bar can derail your path to justice before it starts, resulting in a dismissal on the merits.
Don’t let that happen.
Instead, call my firm to evaluate your likelihood of overcoming a plea in bar and help you get the jury verdict or personal injury settlement you deserve.
Call now to get started: (804) 251-1620 or (757) 810-5614.