State guide · Southeast
Virginia subrogation law guide
Any negligence by the insured that proximately contributed to the loss bars recovery entirely. The defendant bears the burden of proving contributory negligence, and the last clear chance doctrine can still let a negligent plaintiff recover.
Virginia at a glanceVA
- Property damage
- 5 years
- Bodily injury
- 2 years
- Fault rule
- Pure contributory
- Gov. notice
- 180 days
Overview
Virginia is one of the few remaining pure contributory negligence jurisdictions, and that single rule shapes every recovery decision. If the adverse party proves that the insured's negligence proximately contributed to the loss, recovery is barred entirely, whatever the percentages. The offset is time: injury to property carries a five-year limitation period under Va. Code 8.01-243(B), one of the longest in the country, while personal injury runs two years under 8.01-243(A). Written contract claims also run five years. Public entity claims move faster: a negligence claim against a county, city or town needs a written statement within six months under Va. Code 15.2-209, and claims against the Commonwealth or a transportation district need notice within one year under 8.01-195.6. Joint and several liability survives, so one solvent defendant can answer for the whole loss and pursue contribution from the others. The economic loss rule is strict, keeping construction defect claims for damage to the bargained-for work in contract. Health insurance subrogation is barred by statute, but property and auto insurers subrogate normally. In Virginia the question is less how much fault the insured carries than whether the defense can prove any at all.
Quick reference with citations
- Property damage SOL
- 5 years
- Va. Code 8.01-243(B) (injury to property)
- Bodily injury SOL
- 2 years
- Va. Code 8.01-243(A)
- Product liability
- 2 years for personal injury (Va. Code 8.01-243(A)) and 5 years for property damage (8.01-243(B)). No general products statute of repose; the 5-year repose for improvements to real property (8.01-250) does not protect manufacturers or suppliers of equipment, machinery or other articles installed in the structure.
- Written contract
- 5 years
- Contract and indemnity recoveries
- Comparative fault rule
- Pure contributory
- Common law; Baskett v. Banks, 186 Va. 1022, 45 S.E.2d 173 (1947)
- Government notice of claim
- 180 days
- Negligence claims against a county, city or town are barred unless a written statement of the claim, with the time and place of injury, is filed within 6 months after accrual with the locality's attorney, chief executive or mayor; actual knowledge by those officials or the locality's insurer within that period excuses it (Va. Code 15.2-209). Claims against the Commonwealth or a transportation district need a written statement within 1 year to the Director of the Division of Risk Management or the Attorney General, or to the Commissioner of Highways for VDOT (Va. Code 8.01-195.6).
Fault rule in practice
How Virginia's rule changes a $50,000 recovery.
Any negligence by the insured that proximately contributed to the loss bars recovery entirely. The defendant bears the burden of proving contributory negligence, and the last clear chance doctrine can still let a negligent plaintiff recover.
Authority: Common law; Baskett v. Banks, 186 Va. 1022, 45 S.E.2d 173 (1947)
| Insured's share of fault | Recoverable in VA | Under pure comparative |
|---|---|---|
| 0% | $50,000 | $50,000 |
| 20% | Barred | $40,000 |
| 50% | Barred | $25,000 |
| 60% | Barred | $20,000 |
Doctrines that move the number
Virginia doctrine checklist.
Made-whole doctrine
Virginia appellate courts have not squarely adopted the made-whole doctrine for property and casualty subrogation, and older authority indicates specific policy language controls over equitable priority (Collins v. Blue Cross & Blue Shield of Virginia, 193 S.E.2d 782 (Va. 1973)). Health insurance subrogation is largely prohibited by Va. Code 38.2-3405, outside self-funded ERISA plans, so made-whole disputes arise less often than in other states.
Economic loss doctrine
Virginia applies the economic loss rule strictly: purely economic loss is not recoverable in negligence without privity, and Va. Code 8.01-223's abolition of the privity defense covers injury to person or property, not disappointed economic expectations (Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55 (1988)). Duties that exist only by contract are enforced in contract (Richmond Metropolitan Authority v. McDevitt Street Bovis, Inc., 507 S.E.2d 344 (Va. 1998)).
Joint and several liability
Virginia retains joint and several liability among tortfeasors whose negligence combined to cause an indivisible injury. Contribution is available under Va. Code 8.01-34, and a settlement with one tortfeasor reduces the claim against the others by the amount paid and discharges the settling party from contribution (Va. Code 8.01-35.1).
Anti-subrogation and waiver
An insurer cannot subrogate against its own insured, but coinsured protection depends on the policy wording: in Erie Insurance Exchange v. Alba the Supreme Court held a condominium master policy's waiver of subrogation covered named unit owners, not a unit owner's tenant. Va. Code 11-4.1 voids construction contract provisions indemnifying a party for its sole negligence, and Va. Code 38.2-3405 bars subrogation clauses in accident and sickness policies.
Practice notes
Working Virginia subrogation files.
- 1
Screen liability before spending on a Virginia file. A $35,000 collision payment with clean liability recovers $35,000. If the adverse driver proves the insured was speeding even slightly and that speed contributed to the crash, the recovery is zero; there is no 90/10 split. Look at last clear chance where the adverse driver saw the insured's peril and had time to avoid it, and keep the defense's burden of proof in mind.
- 2
The five-year property period in 8.01-243(B) gives closed-file sweeps real room in Virginia: a water or fire loss closed three years ago can still be pursued. Bodily injury on the same event runs only two years under 8.01-243(A), and the contract-based indemnity claim against a contractor runs five years under 8.01-246(2). Calendar each claim separately rather than defaulting the whole file to the shorter date.
- 3
For a city water main break or a county vehicle collision, file the 15.2-209 statement within six months with the county, city or town attorney, or the chief executive or mayor, by hand, mail or commercial delivery, and keep the signed receipt. Counties generally share the Commonwealth's immunity, while cities and towns can be liable for negligent proprietary functions, so confirm the entity and function before investing in the claim.
- 4
Because Virginia keeps joint and several liability, a recovery against a solvent general contractor can cover the whole loss even if a judgment-proof subcontractor shares the fault. Be careful with partial settlements: under 8.01-35.1 a release of one tortfeasor reduces the claim against the others by the amount paid. Draft releases so they do not discharge nonsettling parties, and track every dollar credited.
- 5
Condominium and rental fire losses turn on policy wording. Erie Insurance Exchange v. Alba allowed a master policy carrier to pursue a unit owner's tenant because the waiver of subrogation named only unit owners. Pull the master policy, the declaration and the lease before deciding whether the responsible occupant is a protected insured or a recovery target.
- 6
Ishqkala scores Virginia files on a contributory screen: any narrative signal of insured-side fault, such as an admitted speed, a phone in hand or a missed yield sign, drops the win probability sharply instead of applying a percentage reduction, and the file is routed for reviewer confirmation. Clean-liability Virginia property files score high because the five-year period leaves time for evidence preservation and demand.
Key cases
Baskett v. Banks
186 Va. 1022, 45 S.E.2d 173 (1947)
Long cited for the principle that a plaintiff cannot recover for harm caused in part by the plaintiff's own act or neglect, the foundation of Virginia's pure contributory negligence rule. Any provable insured-side fault can end a Virginia recovery.
Sensenbrenner v. Rust, Orling & Neale, Architects, Inc.
236 Va. 419, 374 S.E.2d 55 (1988)
Homeowners could not recover in tort from the architect and pool contractor for water damage a defective indoor pool caused to the house, because the house and pool were the single package they bargained for. Construction defect recoveries without damage to other property run in contract and need privity.
Erie Insurance Exchange v. Alba
Record No. 190389 (Va. May 28, 2020)
A condominium association's insurer that paid more than $822,000 for a fire could pursue subrogation against the unit owner's tenant, because the policy's waiver of subrogation reached only named unit owners. The policy, not the condominium documents, defines who is protected.
Inter-company arbitration
Arbitration Forums decisions rest on the law of the loss jurisdiction, so arbitrators hearing a Virginia loss apply contributory negligence: if the respondent shows any applicant-side negligence that contributed to the accident, the applicant receives nothing. Expect respondents to argue minor insured fault in every intersection and lane-change case. Strong photo, scene and telematics evidence matters more here than in comparative states. Compulsory jurisdiction for signatories reaches company-paid damages up to $100,000, and the five-year property period rarely forces a rushed filing.
How Ishqkala applies this guide
VA rules, built into every score.
- Opportunities with a Virginia loss state are calendared against the 5 years property damage period or the 2 years bodily injury period, whichever controls the claim type.
- The insured's estimated fault share is applied under pure contributory before recoverable dollars are scored.
- Files involving a public entity get a 180-day notice deadline that outranks the general SOL in the priority queue.
- Alerts fire at 180, 90, 45 and 15 days before the controlling deadline.
Other pure contributory jurisdictions
FAQ
Virginia subrogation FAQ
5 years (Va. Code 8.01-243(B) (injury to property)). A subrogating carrier generally takes the insured's claim subject to the same limitation period, usually measured from the date of loss.
Pure contributory (Common law; Baskett v. Banks, 186 Va. 1022, 45 S.E.2d 173 (1947)). Any negligence by the insured that proximately contributed to the loss bars recovery entirely. The defendant bears the burden of proving contributory negligence, and the last clear chance doctrine can still let a negligent plaintiff recover.
Negligence claims against a county, city or town are barred unless a written statement of the claim, with the time and place of injury, is filed within 6 months after accrual with the locality's attorney, chief executive or mayor; actual knowledge by those officials or the locality's insurer within that period excuses it (Va. Code 15.2-209). Claims against the Commonwealth or a transportation district need a written statement within 1 year to the Director of the Division of Risk Management or the Attorney General, or to the Commissioner of Highways for VDOT (Va. Code 8.01-195.6).
Virginia appellate courts have not squarely adopted the made-whole doctrine for property and casualty subrogation, and older authority indicates specific policy language controls over equitable priority (Collins v. Blue Cross & Blue Shield of Virginia, 193 S.E.2d 782 (Va. 1973)). Health insurance subrogation is largely prohibited by Va. Code 38.2-3405, outside self-funded ERISA plans, so made-whole disputes arise less often than in other states.
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