8.2 COMMON LAW CIVIL CONSPIRACY
Common law actions in Virginia for civil conspiracy have their roots in criminal law. As early as 1912, a criminal conspiracy to fix the price of insurance was described as "a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." 1 Criminal liability for conspiracy attaches for the agreement to engage in a criminal venture "plus an overt act in pursuit of it, regardless of whether the crime agreed upon is ever committed." 2
It was later recognized that such conspiracies could be prosecuted not only criminally but also civilly "if damage has been occasioned to the person against whom [the conspiracy] is directed" and that the "essential elements . . . are . . . the same, though to sustain [a civil] action special damage must
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be proved." 3 For civil conspiracies, the agreement itself does not create liability at law:
[I]t is not essential to criminal liability for conspiracy that the object of the conspiracy should have been accomplished. Civil liability rests on different grounds, however, and, unless actual damage has resulted from something done by one or more of the conspirators in furtherance of the object of the conspiracy, no civil action lies against anyone; but, if a conspiracy is conceived and executed, and a private injury results, the one so injured has a right of action against the conspirators. 4
The Virginia Supreme Court commented on the distinction early on:
The gist of the civil action of conspiracy is the damage caused by the acts committed in pursuance of the formed conspiracy and not the mere combination of two or more persons to accomplish an unlawful purpose or use unlawful means. In other words, the basis of the action is the wrong which is done under the conspiracy and which results in damage to the plaintiff. No cause of action exists without the resulting injury, and the damage produced must arise as the effective result of the conspiracy. 5
The modern tort of common law civil conspiracy today retains the description ascribed originally in the criminal cases: "[a] common law conspiracy consists of two or more persons combined to accomplish, by some concerted action, some criminal or unlawful purpose or some lawful purpose by a criminal or unlawful means." 6 A successful conspiracy claim does not require proof of an express agreement—proof of a "tacit understanding" will suffice. 7
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However, it is not the agreement that lies at the heart of a conspiracy claim. "A claim of civil conspiracy is not actionable in its own right." 8 Instead, "[t]he object of a civil conspiracy claim is to spread liability to persons other than the primary tortfeasor." 9 Thus, the "[t]he foundation of a civil action of conspiracy is the damage caused by the acts committed in furtherance of the conspiracy. Whether a conspiracy caused the alleged damage ordinarily is a question for a jury." 10 Consequently, a showing of special damage is required for a civil conspiracy claim to be actionable, and claims for equitable relief as a result of a conspiracy are insufficient. 11
The Supreme Court of Virginia has recently commented on the predicate act necessary to establish a civil conspiracy. Noting that the underlying act must be "itself wrongful or tortious," 12 the court has held that "an action for civil conspiracy will not lie unless the predicate unlawful act independently imposes liability upon the primary wrongdoer. Only then can the liability be spread to the remaining coconspirators." 13 Thus, there can be no conspiracy to do an act that the law allows. 14
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An example of a wrongful or tortious predicate act may be found in Worrie v. Boze, 15 where the plaintiff dance instructor sued two former employees when they breached their noncompete agreements and entered into competition against her. The court recognized a cause of action for civil conspiracy to induce breach of a contract, even where one of the alleged co-conspirators is a party to the contract. 16 The court has also specifically recognized tortious interference with contract or business expectancies or prospective economic or business advantage as a predicate act for conspiracy. 17 Of course, if an underlying tort is alleged, its proof is essential because without proof of the underlying tort, there can be no conspiracy to commit the tort. 18 It must be shown that at least one of the coconspirators is liable for the underlying tort. 19
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Fundamentally, the underlying conduct must not only be "unlawful," 20 but it also must be actionable in and of itself and provide the basis for recovery in damages to properly state a claim for conspiracy. 21 For example, in La Bella Dona Skin Care, Inc. v. Belle Femme Enterprises, LLC, 22 the court refused to recognize as actionable a claim for conspiracy to fraudulently convey assets. The court noted that section 55-80 of the Virginia Code does not impose liability upon the participants of a fraudulent conveyance but rather renders the conveyance or transfer void. "Therefore, because avoidance of a transaction is the only remedy available . . . , a claim for fraudulent conveyance is not a predicate unlawful act from which liability can be spread to others on a theory of civil...
