Senate Bill No. 598
(By Senators Sprouse, Yoder, Barnes, Facemyer,
Guills, Weeks, Minear and Lanham)
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[Introduced March 18, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §55-7-23, relating to
reducing court judgments in claims for injury or property
damage for economic loss by amounts a plaintiff receives from
collateral sources.
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
follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-23. Reduction in economic damages for economic losses for
payments from collateral sources for the same injury.
(a) Definitions:
(1) "Collateral sources" means a source of benefits or
advantages for economic loss that a plaintiff receives from:
(A) Any federal or state act, public program or insurance
which provides payments for medical expenses, disability benefits,
including Workers' Compensation benefits, or other similar
benefits. Benefits payable under the federal Social Security Act
are not considered payments from collateral sources except for
Social Security disability benefits directly attributable to the
injury in question;
(B) Any contract or agreement of any group, organization,
partnership or corporation to provide, pay for or reimburse the
cost of medical, hospital, dental, nursing, rehabilitation, therapy
or other health care services or provide similar benefits;
(C) Any group accident, sickness or income disability
insurance, any casualty or property insurance (including automobile
and homeowners' insurance) which provides medical benefits, income
replacement or disability coverage, or any other similar insurance
benefits, except life insurance, to the extent that someone other
than the insured, including the insured's employer, has paid all or
part of the premium or made an economic contribution on behalf of
the plaintiff; or
(2) "Economic damages" includes, but is not limited to,
damages for medical care, rehabilitation services, lost earnings or
other economic losses. It does not include damages for noneconomic
losses.
(3) "Noneconomic loss" means losses, including, but not limited to, pain, suffering, mental anguish and grief.
(4) "Plaintiff" means an individual, or his or her
representative, who brings a tort action theory of liability.
(5) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(b) In any tort action, regardless of the theory of liability,
other than actions subject to article seven-b of this chapter,
arising after the effective date of this section, a defendant who
has been found liable to the plaintiff for damages for economic
damages may present to the court, after the trier of fact has
rendered a verdict, but before entry of judgment, evidence of
payments the plaintiff receives for the same injury from collateral
sources.
(c) In any hearing pursuant to subsection (b) of this section,
the defendant may present evidence of future payments from
collateral sources if the court determines that: (1) There is a
preexisting contractual or statutory obligation for the collateral
sources to pay the benefits; (2) the benefits, to a reasonable
degree of certainty, will be paid to the plaintiff for expenses the
trier of fact has determined the plaintiff will incur in the
future; and (3) the amount of the future expenses is readily
reducible to a sum certain.
(d) In the hearing pursuant to subsection (b) of this section,
the plaintiff may present evidence of the value of payments or contributions he or she has made to secure the right to the
benefits paid by the collateral source.
(e) After hearing the evidence presented by the parties, the
court shall make the following findings of fact:
(1) The total amount of damages for economic loss found by the
trier of fact;
(2) The total amount of damages for each category of economic
loss found by the trier of fact;
(3) The total amount of allowable collateral source payments
received or to be received by the plaintiff for the damages which
was the subject of the verdict in each category of economic loss;
and
(4) The total amount of any premiums or contributions paid by
the plaintiff in exchange for the collateral source payments in
each category of economic loss found by the trier of fact.
(f) The court shall subtract the total premiums the plaintiff
was found to have paid in each category of economic loss from the
total collateral source benefits the plaintiff received with regard
to that category of economic loss to arrive at the net amount of
collateral source payments.
(g) The court shall then subtract the net amount of collateral
source payments received or to be received by the plaintiff in each
category of economic loss from the total amount of damages awarded
the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted verdict.
(h) The court shall not reduce the verdict rendered by the
trier of fact in any category of economic loss to reflect:
(1) Amounts paid to or on behalf of the plaintiff which the
collateral source has a right to recover from the plaintiff through
subrogation, lien or reimbursement;
(2) Amounts in excess of benefits actually paid or to be paid
on behalf of the plaintiff by a collateral source in a category of
economic loss;
(3) The proceeds of any individual disability or income
replacement insurance paid for entirely by the plaintiff; and
(4) The assets of the plaintiff or the members of the
plaintiff's immediate family.
(i) After determining the amount of the adjusted verdict, the
court shall enter judgment.
NOTE: The purpose of this bill is to
reduce court judgments in
claims for personal injury or property damage for economic loss by
amounts a plaintiff receives from collateral sources.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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