As is always the case when I attend the Virginia State Bar’s annual construction law seminar, I come away from it with a few posts on recent cases and their implications. The first of these is not a construction case, but has implications relating to the state project related statute of limitations and indemnification issues for construction contracts brought out in stark relief in the now infamous Hensel Phelps case.
In Radiance Capital Receivables Fourteen, LLC v. Foster the Court considered a waiver of the statute of limitations found in a loan contract. The operative facts are that the waiver was found in a Continuing Guaranty contract and that the default happened more than 5 years prior to the date that Radiance filed suit to enforce its rights. When the defendants filed a plea in bar stating that the statute of limitations had run and therefore the claim was barred, Radiance of course argued that the defendants had waived their right to bring such a defense. The defendants responded that the waiver was invalid in that it violated the terms of Va. Code 8.01-232 that states among other things:
an unwritten promise not to plead the statute shall be void, and a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.
The Circuit Court and ultimately the Supreme Court agreed with the defendants. In doing so, the Virginia Supreme Court rejected arguments of estoppel and an argument that a “waiver” is not a “promise not to plead.”