Declaratory Judgments in Virginia | Ryan C. Young | Richmond, Virginia Litigation Attorney

What is a declaratory judgment?

A declaratory judgment is a binding decision by a court defining the relationship between two litigants.

What is the purpose of a declaratory judgment?

In Virginia, declaratory judgments are meant to afford relief from uncertainty and insecurity between two parties. See Virginia Code § 8.01-191.

Circuit Courts have the authority to issue declaratory judgments in Virginia.

In Virginia, our Circuit Courts have the power to issue declaratory judgments pursuant to Virginia Code § 8.01-184. The authority to enter a declaratory judgment is up to the discretion of the Court. Hoffman Fam., L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685, 529 S.E.2d 318 (2000).

The controversy must be one that is justiciable.

In other words, there must be an actual (currently existing) controversy before the court. A Virginia court cannot issue a declaratory judgment where the controversy might happen in the future based upon hypothetical facts. See Reisen v. Aetna Life & Cas. Co., 225 Va. 327, 302 S.E.2d 529 (1983). A justiciable controversy involves specific adverse claims based on present facts that are ripe for adjudication. Mosher Steel-Va. v. Teig, 229 Va. 95, 327 S.E.2d 87 (1985).

For a declaratory judgment, a case is ripe where there is a) an antagonistic assertion and b) denial of that right. One of the more common examples occurs with insurance coverage. I believe (assert) that I am covered by a particular happening from my insurance carrier. My insurance carrier then denies to cover or defend an action brought against me. In that instance, a declaratory judgment may be awarded to determine whether this particular instance should be covered by my insurer. I must stress that this is just one example of many potential types of cases which might be covered by a declaratory judgment action.

Virginia Code § 8.01-184 lists the following as examples of controversies which might be decided by declaratory judgment: the interpretation of deeds, wills, and other instruments of writing, statutes, municipal ordinances and other governmental regulations. Note that the statute “does not exclude other instances of actual antagonistic assertion”.

Costs and expenses of filing a declaratory judgment suit.

In Virginia, costs of bringing the declaratory judgment suit may be awarded by a circuit court. See Virginia Code § 8.01-190. However, note that the statute does not expressly reference attorneys’ fees anywhere in the language. The Supreme Court of Virginia has ruled that attorneys’ fees may not be awarded pursuant to a declaratory judgment action. See Russell Cnty. Dep’t of Soc. Servs. v. O’Quinn, 259 Va. 139, 523 S.E.2d 492 (2000).

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