PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Russell, S.J.

GENEVA LAWSON MCKINNEY, ADMINISTRATOR OF
THE ESTATE OF GENE L. McKINNEY, DECEASED
                                           OPINION BY
v.   Record No. 111869         SENIOR JUSTICE CHARLES S. RUSSELL
                                       September 14, 2012
VIRGINIA SURGICAL ASSOCIATES, P.C.

          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Theodore J. Markow, Judge

      This appeal involves interpretation of the tolling

provisions of Code § 8.01-229(E)(3), as it affects the running

of the statute of limitations after a nonsuit.      The circuit

court decided the case on the pleadings and the facts are stated

as set forth therein and in a written statement of facts signed

by the trial judge pursuant to Rule 5:11(e).

                         Facts and Proceedings

      On July 3, 2007, Gene L. McKinney (the decedent) was taken

by ambulance to a hospital emergency room.       He was treated by

physicians who were employees and agents of Virginia Surgical

Associates, P.C. (the defendant).    The defendant performed

abdominal surgery and continuing care through August 6, 2007.

      On July 21, 2009, the decedent filed a civil action for

medical malpractice against the defendant in the Circuit Court
of the City of Richmond. 1   On March 19, 2010, decedent's counsel

filed a suggestion of death, reporting that the decedent had

died on February 24, 2010.    The decedent's widow, Geneva Lawson

McKinney, (the plaintiff) having qualified as administrator of

the decedent's estate in Henrico County, moved to be substituted

as plaintiff and for leave to file an amended complaint,

converting the pending personal injury action to an action for

wrongful death.    The court granted both motions and ordered her

amended complaint filed on May 7, 2010.

        After further discovery, the plaintiff concluded that there

was insufficient evidence to prove that the defendant's

negligence was the cause of the decedent's death.    She took a

voluntary nonsuit of her wrongful death action on January 19,

2011.

        On March 10, 2011, the plaintiff filed in the same court,

against the same defendant, the present action for personal

injuries suffered by the decedent arising out of the same

alleged negligence, as a survival action pursuant to Code

§ 8.01-25.    The plaintiff's survival action was therefore filed

more than two years after the defendant's alleged negligence

occurred, but less than six months after the plaintiff's nonsuit




        1
       The complaint also named Gastrointestinal Specialists,
Inc. as a defendant but later nonsuited that party.
                                   2
of her action for wrongful death.     The defendant filed a plea in

bar, asserting the two-year statute of limitations applicable to

actions for personal injury prescribed by Code § 8.01-243(A).

The court heard the plea on briefs and arguments of counsel,

sustained the plea and dismissed the case.    We awarded the

plaintiff an appeal.

                               Analysis

     This appeal presents a pure question of law involving the

interpretation of a statute.    We review such questions de novo.

Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010).

     Code § 8.01-25 abolished the ancient common-law rule that

personal actions die with the plaintiff by providing that every

cause of action shall survive the death of either party.     If the

plaintiff dies as a result of the injury for which the action is

pending, the pending action must be amended to become an action

for wrongful death pursuant to Code § 8.01-56.    In those

circumstances, the wrongful death action is the plaintiff's sole

remedy.   Centra Health, Inc. v. Mullins, 277 Va. 59, 77, 670

S.E.2d 708, 717 (2009).

     If, on the other hand, the plaintiff dies as a result of a

cause other than the injury for which he sued during his

lifetime, the pending action survives by virtue of Code § 8.01-

25 and may be carried on by his personal representative.     In

that situation the personal representative may recover such

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damages as the deceased plaintiff would have been entitled to

recover, except punitive damages.

     Code § 8.01-229(E)(3), upon which both parties rely,

provides:

     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, or within the
     limitation period as provided by subdivision B
     1, whichever period is longer. This tolling
     provision shall apply irrespective of whether
     the action is originally filed in a federal or
     a state court and recommenced in any other
     court, and shall apply to all actions
     irrespective of whether they arise under
     common law or statute.

     This section must be read together with Code § 8.01-380,

the nonsuit statute to which it refers and with which it is in

pari materia.   See e.g., E.C. v. Virginia Dep't of Juvenile

Justice, 283 Va. 522, 537, 722 S.E.2d 820, 835 (2012) ("It is a

cardinal rule of statutory construction that statutes dealing

with a specific subject must be construed together in order to

arrive at the object sought to be accomplished.") (quoting

Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456, 462

(2007), and Prillaman v. Commonwealth, 199 Va. 401, 406, 100

S.E.2d 4, 7 (1957)).   Subsection A of that statute provides that

after a nonsuit, "no new proceeding on the same cause of action


                                 4
or against the same party shall be had in any court other than

that in which the nonsuit was taken."   Subsection B provides

that a plaintiff may take one nonsuit as a matter of right "to a

cause of action or against the same party to the proceeding."

Subsection D provides that after a counterclaim has been filed,

a party "shall not be allowed to nonsuit a cause of action

without the consent of the adverse party."   (Emphasis added.)

     Statutes dealing with the same subject matter must be read

together so as to adhere to the legislative intent underlying

them and to permit them to operate together without conflict.

City of Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675

S.E.2d 197, 202 (2009).   Application of that principle makes it

clear that the terms "such action" and "his action," as used in

Code § 8.01-229(E)(3), refer to the same subject as that of Code

§ 8.01-380 and are intended to mean "cause of action."

Therefore, if the plaintiff's survival action arose out of the

same cause of action as her nonsuited wrongful death action, it

is entitled to the benefit of the tolling provision of Code

§ 8.01-229(E)(3) and is timely because it was filed within six

months after the nonsuit.   If it arose out of a different cause

of action, it was barred by the two-year statute of limitations

for personal injury claims.

     A "cause of action" is the set of operative facts which,

under the substantive law, gives rise to a "right of action."

                                 5
Roller v. Basic Constr. Co., 238 Va. 321, 327, 384 S.E.2d 323,

326 (1989).   "Cause of action" and "right of action" are not

synonymous.   A "right of action" cannot arise until a cause of

action exists because a right of action is a remedial right to

presently enforce an existing cause of action.    Van Dam v. Gay,

280 Va. 457, 460, 699 S.E.2d 480, 481 (2010).

     In the context of the present case, the cause of action was

the defendant's alleged medical malpractice resulting in injury

to the decedent.    From this cause of action, two rights of

action arose:   (1) the decedent's right to bring an action for

personal injury during his lifetime, which survived to be

carried on by his personal representative after his death, and

(2) the personal representative's right to bring an action for

wrongful death. 2

     The circuit court erred in holding that the "survival

action is a different cause of action than the wrongful death

action" and that it was therefore not saved by the tolling

provision of Code § 8.01-229(E)(3).   There was a single cause of

action.   A right of action to enforce it was timely if brought




     2
       Although the defendant argued otherwise in the circuit
court, on appeal it agrees with this analysis, but relies on
defenses of waiver, election of remedies, and failure to
preserve a right to bring a survival action. We find no merit
in these contentions.
                                  6
within six months after entry of the order granting the nonsuit.

The plaintiff filed the present action within that period.

                           Conclusion

     For the reasons stated, we will reverse the judgment of the

circuit court and remand the case to that court for further

proceedings consistent with this opinion.

                                            Reversed and remanded.




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