Shipman v. Kruck, 267 Va. 495

Summary

The Supreme Court of Virginia held that the Shipmans' legal-malpractice cause of action accrued when their attorney filed the bankruptcy petition, subject to the continuous representation rule. The court rejected application of a payment rule that would delay accrual until the client paid an underlying judgment, overruling Duesterdick to the extent it supported that rule in the statute-of-limitations context. Because the action was filed more than three years after the attorney's representation ended, the court affirmed the trial court's dismissal as untimely.

Holdings

1. A legal-malpractice cause of action accrues when the attorney's breach causes some injury or damage, however slight; under Code § 8.01-230, the relevant breach in an ex contractu action is not the later discovery of resulting damage.
2. When malpractice is alleged during a continuous or recurring course of professional services concerning a particular undertaking, the statute of limitations begins to run when the attorney's services concerning that undertaking terminate, rather than when substitute counsel is retained.
3. The payment rule does not postpone accrual of a legal-malpractice claim for statute-of-limitations purposes, and Duesterdick v. Throckmorton is overruled to the extent it stated that a client suffers no actual loss or damage until payment of a judgment.
4. The Shipmans' claim was untimely because the continuous-representation period ended on January 19, 1999, giving them until January 19, 2002 to file; their September 11, 2002 action was therefore barred.

Questions Presented

1. When did the Shipmans' legal-malpractice cause of action accrue for purposes of the statute of limitations?
2. Does Virginia's continuous-representation rule apply to toll accrual during an attorney's representation concerning a particular undertaking?
3. Does the so-called payment rule postpone accrual of a legal-malpractice claim until the client pays a judgment or otherwise makes payment?
4. Was the Shipmans' action timely filed under the applicable three-year statute of limitations?

Disposition

affirmed