Senate Bill No. 421
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
[Passed April 9, 2005; in effect ninety days from passage.]
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §55-7-23, relating to
the apportionment of damages in court actions involving the
tortious conduct of more than one person; allowing for several
liability for certain defendants; allowing for several
liability subject to reallocation for certain defendants; and
providing for several liability for defendants that are found
to be less than thirty percent at fault under certain
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 section, designated §55-7-23, to read as
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-23. Apportionment of damages.
(a) In any cause of action involving the tortious conduct of
more than one defendant, the trial court shall:
(1) Instruct the jury to determine, or, if there is no jury,
find, the total amount of damages sustained by the claimant and the
proportionate fault of each of the parties in the litigation at the
time the verdict is rendered; and
(2) Enter judgment against each defendant found to be liable
on the basis of the rules of joint and several liability, except
that if any defendant is thirty percent or less at fault, then that
defendant's liability shall be several and not joint and he or she
shall be liable only for the damages attributable to him or her,
except as otherwise provided in this section.
(b) Notwithstanding subdivision (2), subsection (a) of this
section, the rules of joint and several liability shall apply to:
(1) Any party who acted with the intention of inflicting
injury or damage;
(2) Any party who acted in concert with another person as part
of a common plan or design resulting in harm;
(3) Any party who negligently or willfully caused the unlawful
emission, disposal or spillage of a toxic or hazardous substance;
(4) Any party strictly liable for the manufacture and sale of
a defective product.
(c) Notwithstanding subdivision (2), subsection (a) of this section, if a claimant through good faith efforts is unable to
collect from a liable defendant, the claimant may, not later than
six months after judgment becomes final through lapse of time for
appeal or through exhaustion of appeal, whichever occurs later,
move for reallocation of any uncollectible amount among the other
parties in the litigation at the time the verdict is rendered.
(1) Upon the filing of such a motion, the court shall
determine whether all or part of a defendant's proportionate share
of the verdict is uncollectible from that defendant and shall
reallocate such uncollectible amount among the other parties in the
litigation at the time the verdict is rendered, including a
claimant at fault according to their percentages of fault:
, That the court shall not reallocate to any defendant an
uncollectible amount greater than that defendant's percentage of
fault multiplied by such uncollectible amount.
(2) If such a motion is filed, the parties may conduct
discovery on the issue of collectability prior to a hearing on such
(3) Any order regarding such motion shall be entered within
one hundred twenty days after the date of filing such a motion.
(4) A defendant's share of the obligation to a claimant may
not be increased by reason of reallocation under this subsection
(A) The percentage of fault of that defendant is equal to or less than the claimant's percentage of fault; or
(B) The percentage of fault of that defendant is less than ten
(5) A party whose liability is reallocated is nonetheless
subject to contribution and to any continuing liability to the
claimant on the judgment.
(6) If any defendant's share of the obligation to a claimant
is not increased by reason of the application of subdivision (4) of
this subsection, the amount of that defendant's share of the
reallocation shall be considered uncollectible and shall be
reallocated among all other parties who are not subject to
subdivision four of this subsection, including the claimant, in the
same manner as otherwise provided this subsection.
(d) Nothing in this section may be construed to affect, impair
or abrogate any right of indemnity or contribution arising out of
any contract or agreement or any right of indemnity otherwise
provided by law.
(e) Nothing in this section creates or recognizes, either
explicitly or impliedly, any new or different cause of action not
otherwise recognized by law.
(f) Nothing in this section may be construed to affect, impair
or abrogate the provisions of section seven, article twelve-a,
chapter twenty-nine of this code or section nine, article seven-b
of this chapter.
(g) This section applies only to causes of action that accrue
on or after the first day of July, two thousand five.