Introduced Version
House Bill 2989 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2989
(By Delegates Morgan, Pasdon and McCuskey)
[Introduced March 20, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §53-9-1, §53-9-2,
§53-9-3, §53-9-4, §53-9-5 and §53-9-6,
all
relating to the
bifurcation for trial of claims for compensatory and exemplary
damages and when punitive or exemplary damages may be awarded;
maximum amounts.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §53-9-1, §53-9-2,
§53-9-3, §53-9-4, §53-9-5 and §53-9-6,
all to read as follows:
ARTICLE 8. BIFURCATED TRIAL ON ISSUES OF COMPENSATORY AND
EXEMPLARY DAMAGES; WHEN PUNITIVE OR EXEMPLARY
DAMAGES MAY BE AWARDED; MAXIMUM AMOUNTS.
§53-9-1. Definitions.
_____As used in this article:
_____(1) "Civil action" means any noncriminal, civil action arising
in tort that seeks damages for injury or loss to person or
property, including civil actions involving claims based upon
defective products but not a civil action for damages for breach of
a commercial contract or agreement governed by article two, chapter
forty-six of this code.
_____(2) "Trier of fact" means the jury or, in a nonjury action,
the court.
§53-9-2. Bifurcated trial.
_____(a) In a civil action that is tried to a jury and in which a
plaintiff makes a claim for compensatory and punitive or exemplary
damages, upon motion of any party, the trial of the civil action
shall be bifurcated as follows:
_____(1) The initial stage of the trial shall be confined to the
presentation of evidence concerning and a determination by the jury
as to whether one or all of the defendants is civilly liable to the
plaintiff and, if so, whether the plaintiff is entitled to recover
from a defendant compensatory damages for any proven injury or loss
to person or property. During this initial stage, neither the
parties nor the court may advise, mention or otherwise imply to the
jury that a claim for punitive damages in addition to a claim for
compensatory damages is pending. Moreover, no party may present
and the court may not permit a party to present, evidence that relates to the issue of whether plaintiff is entitled to recover
from a defendant or multiple defendants, punitive or exemplary
damages for the injury or loss to the person or property of the
plaintiff.
_____(2) Following the presentation of sufficient evidence with
respect to liability and compensatory damages to warrant submission
to the jury, the court shall instruct the jury to return, and the
jury shall return, a general verdict and, if that verdict is in
favor of the plaintiff, answers to special interrogatories that
specify the total compensatory damages recovered by the plaintiff
against each defendant.
_____(3) If the jury returns a verdict in favor of the plaintiff
against a defendant for compensatory damages for injury or loss to
person or property of the plaintiff, evidence and arguments may
then be presented to the jury in a second phase of the trial going
to whether, in addition to those compensatory damages, the actions
of the defendant or defendants upon which liability was predicated
were such as to warrant the awarding of punitive damages over and
above the compensatory damages previously awarded.
_____(b) In a civil action tried to a court and in which a
plaintiff makes a claim for compensatory and punitive or exemplary
damages:
_____(1) The court shall first make a determination with respect to
whether the plaintiff is entitled to recover compensatory damages from a defendant for injury or loss to person or property. If the
court's determination is in favor of the plaintiff and against a
defendant, the court shall then make findings of fact that specify
the total compensatory damages recoverable by the plaintiff from
that defendant.
_____(2) After making a determination as to the total compensatory
damages the plaintiff is entitled to recover from a defendant, the
court shall then hear arguments and testimony regarding whether
punitive or exemplary damages over and above the compensatory
damages previously awarded are warranted. If it determines that
they are, the court shall enter a judgment with findings of fact
and conclusions of law supporting both the award of punitive or
exemplary damages and the amount of those damages.
§53-9-3. When punitive damages may be awarded.
_____(a)Punitive damages may be awarded:
_____(1) In a civil action where a plaintiff has been found to be
entitled to compensatory damages against a defendant, the trier of
fact shall determine the liability of a defendant for punitive or
exemplary damages and the amount of those damages.
_____(2) In a civil action if a plaintiff proves by clear and
convincing evidence that the acts or omissions of that defendant
demonstrate:
_____(A) Actual malice;
_____(B) Wanton, willful or reckless conduct;
_____(C) Vindictive or egregious misconduct;
_____(D) Criminal indifference to civil obligations affecting the
rights of others appear; or
_____(E) Where legislative enactment authorizes such damages.
_____(b) Where a wrongful act, done under a bona fide claim of
right, and without malice, punitive or exemplary damages are not
recoverable in a civil action.
§53-9-4. Review of an award of punitive damages by a jury.
_____(a) Before entering judgment for punitive or exemplary damages
based upon a jury verdict awarding those damages, the court shall
review the award and determine whether the amount of the punitive
damages award is justified by aggravating evidence including, but
not limited to:
_____(1) The reprehensibility of the defendant's conduct;
_____(2) Whether the defendant profited from the wrongful conduct;
_____(3) The financial position of the defendant;
_____(4) The appropriateness of punitive damages to encourage fair
and reasonable settlements when a clear wrong has been committed;
and
_____(5) The cost of litigation to the plaintiff.
_____(b) The court shall then consider whether a reduction of the
award is warranted based upon mitigating evidence including, but
not limited to:
_____(1) Whether the punitive damages awarded bear a reasonable relationship to the harm that is likely to occur or has occurred in
West Virginia as a result of the defendant's conduct;
_____(2) Whether punitive damages bear a reasonable relationship to
compensatory damages awarded the plaintiff;
_____(3) The cost of litigation to the defendant;
_____(4) Any criminal sanctions imposed on the defendant for the
acts or omission upon which the award is based;
_____(5) Any other civil actions against the same defendant based
upon the same conduct;
_____(6) Relevant information that was not available to the jury
because it was unduly prejudicial to the defendant; and
_____(7) Additional relevant evidence.
_____(c) After conducting this review, the court shall, in
entering judgment, make specific findings of fact and conclusions
of law with respect to the determinations required under
subsections (a) and (b) of this section.
§53-9-5. Limits on punitive damages.
_____(a) A court may not enter a judgment for punitive or exemplary
damages that is in excess of three times the amount of the
compensatory damages, exclusive of attorney fees, awarded to the
plaintiff, exclusive of attorney fees, unless it enters an order
containing specific findings of fact and conclusions of law that
justify a larger award. In no case, however, may a court enter a
judgment for punitive or exemplary damages that would threaten the continued economic viability of the defendant.
_____(b) In the event a court determines that an award of punitive
or exemplary damages in excess of three times the amount of the
compensatory damages awarded to the plaintiff from a defendant is
warranted under the facts and the law, all punitive or exemplary
damages in exceeding three times the amount of the compensatory
damages shall be paid to a special fund established by the West
Virginia Supreme Court of Appeals for the purpose of compensating
residents of West Virginia who have suffered physical or
psychiatric injuries to their person or damage to their property as
a result of crimes perpetrated in West Virginia and for which full
compensation for the injuries or damages have not been forthcoming
from the perpetrator of those crimes or any third party payor.
_____(c) An award of prejudgment interest may not include
prejudgment interest on punitive or exemplary damages.
_____(d)__An award of punitive damages in a civil action may not be
be entered against a defendant if that defendant files with the
court a certified judgment, judgment entries or other evidence
showing that punitive or exemplary damages have already been
awarded and collected, in any state or federal court, against that
defendant based on the same act, course of conduct or omissions
that is alleged to have caused the injury or loss to person or
property.
_____(e) An award of punitive or exemplary damage may not be entered in a case involving contractual claims arising out of
commercial transaction subject to article two, chapter forty-six of
this code, regardless of whether the claims are couched in contract
or tort, the remedies for the claims being limited to those
specifically provided for in that article.
§53-9-6. Attorney fees.
_____(a) Where a court awards punitive or exemplary damages to a
plaintiff, the court may, but need not, award attorney fees payable
by the defendant to the attorney or attorneys for the plaintiff
based upon the amount of the punitive or exemplary damages awarded.
_____(b) In making such an award, the court shall consider the fees
to which the attorneys for the plaintiff is entitled under any fee
or retention agreement, the amount of work performed by the
attorneys in developing the evidence presented supporting the award
of punitive or exemplary damages, and whether an award of
additional damages in the form of attorney fees would threaten the
continued economic viability of the defendant against whom such
damages are awarded.
_____(c) Where the court elects to award attorney fees predicated
upon entry of a judgment for punitive damages, it shall enter
findings of fact sufficient to allow a reviewing court to determine
the basis for and propriety of the award.
_____(d) In no event may the attorney fees based upon an award of
punitive or exemplary damages exceed fifteen percent of the total amount of the punitive and exemplary damages awarded.
NOTE: The purpose of this bill is to create
a system for the
bifurcation for trial of claims for compensatory and exemplary
damages. The bill provides when punitive or exemplary damages may
be awarded and specifies maximum amounts.
This article is new; therefore, it has been completely
underscored.