Senate Bill No. 706
(By Senators McCabe and Foster)
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[Introduced March 21, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §23-4-2 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto three
new sections, designated §55-7-23, §55-7-24 and §55-7-25; and
to amend said code by adding thereto a new article, designated
§55-7E-1, §55-7E-2, §55-7E-3, §55-7E-4, §55-7E-5, §55-7E-6,
§55-7E-7, §55-7E-8, §55-7E-9 and §55-7E-10, all relating to
defining "deliberate intention"; prohibiting an employee from
recovering for an injury that was self-inflicted; establishing
the Asbestos and Silica Compensation Fairness Act of 2005;
providing for certain judicial standards and procedures for
personal injury and wrongful death claims arising out of
asbestos or silica exposure; providing a short title; setting
forth findings and purpose; setting forth definitions; setting
forth legal standards and procedures for establishing physical
impairment; prescribing statute of limitation standards; requesting the state Supreme Court of Appeals to permit
consolidation of asbestos or silica claims for trial; and
providing an effective date.
Be it enacted by the Legislature of West Virginia:
That §23-4-2 of the Code of West Virginia, 1931, as amended;
be amended and reenacted; that said code be amended by adding
thereto three new sections, designated §55-7-23, §55-7-24 and
§55-7-25; and that said code be amended by adding thereto a new
article, designated §55-7E-1, §55-7E-2, §55-7E-3, §55-7E-4, §55-7E-
5, §55-7E-6, §55-7E-7, §55-7E-8, §55-7E-9 and §55-7E-10, all to
read as follows:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or
intentionally caused by employer; legislative
declarations and findings; "deliberate intention"
defined.
(a) Notwithstanding anything contained in this chapter, no
employee or dependent of any employee is entitled to receive any
sum from the Workers' Compensation Fund, from a self-insured
employer, or otherwise under the provisions of this chapter, on
account of any personal injury to or death to any employee caused
by a self-inflicted injury or the intoxication of the employee.
Upon the occurrence of an injury which the employee asserts, or which reasonably appears to have, occurred in the course of and
resulting from the employee's employment, the employer may require
the employee to undergo a blood test for the purpose of determining
the existence or nonexistence of evidence of intoxication pursuant
to rules for the administration of the test promulgated by the
Board of Managers: Provided, That the employer must have a
reasonable and good faith objective suspicion of the employee's
intoxication and may only test for the purpose of determinating
whether the person is intoxicated.
(b) For the purpose of this chapter, the Commission may
cooperate with the office of miners' health, safety and training
and the State Division of Labor in promoting general safety
programs and in formulating rules to govern hazardous employments.
(c) If injury or death result to any employee from the
deliberate intention of his or her employer to produce the injury
or death, the employee, the widow, widower, child or dependent of
the employee has the privilege to take under this chapter and has
a cause of action against the employer, as if this chapter had not
been enacted, for any excess of damages over the amount received or
receivable under this chapter.
(d) (1) It is declared that enactment of this chapter and the
establishment of the Workers' Compensation System in this chapter
was and is intended to remove from the common law tort system all
disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee
except as expressly provided in this chapter and to establish a
system which compensates even though the injury or death of an
employee may be caused by his or her own fault or the fault of a
coemployee; that the immunity established in sections six and
six-a, article two of this chapter is an essential aspect of this
Workers' Compensation System; that the intent of the Legislature in
providing immunity from common lawsuit was and is to protect those
immunized from litigation outside the Workers' Compensation System
except as expressly provided in this chapter; that, in enacting the
immunity provisions of this chapter, the Legislature intended to
create a legislative standard for loss of that immunity of more
narrow application and containing more specific mandatory elements
than the common law tort system concept and standard of willful,
wanton and reckless misconduct; and that it was and is the
legislative intent to promote prompt judicial resolution of the
question of whether a suit prosecuted under the asserted authority
of this section is or is not prohibited by the immunity granted
under this chapter.
(2) The immunity from suit provided under this section and
under section six-a, article two of this chapter may be lost only
if the employer or person against whom liability is asserted acted
with "deliberate intention". This requirement may be satisfied
only if:
(i) It is proved that the employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee. This standard requires a showing
of an actual, specific intent and may not be satisfied by
allegation or proof of: (A) Conduct which produces a result that
was not specifically intended; (B) conduct which constitutes
negligence, no matter how gross or aggravated; or (C) willful,
wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that
all of the following facts are proven:
(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer, prior to the injury, had actual
knowledge of a subjective realization and an appreciation of the
existence of the specific unsafe working condition and of the high
degree of risk and the strong probability of serious injury or
death presented by the specific unsafe working condition;
(C) That the specific unsafe working condition was a violation
of a state or federal safety statute, rule or regulation, whether
cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, which
statute, rule, or regulation or standard was specifically
applicable to the particular work and working condition involved,
as contrasted with a statute, rule, or regulation or standard
generally requiring safe workplaces, equipment or working
conditions;
(D) That notwithstanding the existence of the facts set forth
in subparagraphs (A) through (C), inclusive, of this paragraph, the
employer nevertheless intentionally and by an overt act thereafter
exposed an employee to the specific unsafe working condition
intentionally; and
(E) That the employee exposed suffered serious compensable
injury or compensable death as a direct and proximate result of the
specific unsafe working condition, and in the case of an injury,
the injury was allocated a permanent disability award of at least
thirty percent. The statute of limitations begins to run upon
issuance of the permanent award.
(iii) In cases alleging liability under the provisions of
paragraph (ii) of this subdivision:
(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;
(B) The negligence or fault of the employee who suffered
serious injury or death is a defense and shall be apportioned and
compared with the fault, if any, of the employer, as determined in paragraph (ii) and the negligence or fault of any other parties
whose conduct contributed to the serious injury or death, and
responsibility for damages shall be allocated according to the law
governing comparative fault. The full amount of any offset to
which the employer is entitled under subsection (c) shall be
subtracted from whatever amount of damages is determined to be the
employer's responsibility.
(B) (C) Notwithstanding any other provision of law or rule to
the contrary, and consistent with the legislative findings of
intent to promote prompt judicial resolution of issues of immunity
from litigation under this chapter, the court shall dismiss the
action upon motion for summary judgment if it finds, pursuant to
Rule 56 of the Rules of Civil Procedure that one or more of the
facts required to be proved by clear and convincing evidence under
the provisions of subparagraphs (A) through (E), inclusive,
paragraph (ii) of this subdivision do not exist, and the court
shall dismiss the action upon a timely motion for a directed
verdict against the plaintiff if after considering all the evidence
and every inference legitimately and reasonably raised thereby most
favorably to the plaintiff, the court determines that there is not
sufficient evidence to find each and every one of the facts
required to be proven by the provisions of subparagraphs (A)
through (E), inclusive, paragraph (ii) of this subdivision; and
(C) (D) The provisions of this paragraph and of each subparagraph thereof are severable from the provisions of each
other subparagraph, subsection, section, article or chapter of this
code so that if any provision of a subparagraph of this paragraph
is held void, the remaining provisions of this act article and this
code remain valid.
(e) The reenactment of this section in the regular session of
the Legislature during the year one thousand nine hundred
eighty-three does not in any way affect the right of any person to
bring an action with respect to or upon any cause of action which
arose or accrued prior to the effective date of the reenactment.
(f) All causes of actions brought pursuant to section two,
article four of this chapter, including each one of the five
elements set forth in paragraph (d)(2)(ii), must be proven to a
clear and convincing evidentiary standard.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
JUDICIAL SALE.
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 source" means a source of benefits or
advantages for economic loss that the plaintiff has received 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 Social Security Act are not
considered payments from collateral sources except for social
security disability benefits directly attributable to the medical
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 of 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
(D) Any contractual or voluntary wage continuation plan
provided by an employer or otherwise, or any other system intended
to provide wages during a period of disability.
(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 of theory of liability.
(5) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(b) In any tort actions, regardless of the theory of liability
under which they are commenced, 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 libel 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 has received
to 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 on the collateral
source 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 account 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
were 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.
§55-7-24. Damages for noneconomic loss.
(a) A plaintiff may recover damages for noneconomic loss only
in the types of civil actions in which such damages were authorized
at the time that this bill became a law;
(b) In civil actions based on physical injury, the plaintiff
who experienced the physical injury on which the action is based
and all plaintiffs who derive their claims from or through such
plaintiff may recover damages for noneconomic loss in a total amount for all such plaintiffs not to exceed the greater of two
hundred fifty thousand dollars or three times economic damages to
a maximum of five hundred thousand dollars. However, in the event
that the physical injury is permanent and severe physical
deformity, loss of use of limb or loss of a major body organ system
or permanent physical functional injury that permanently prevents
the injured person from being able to independently care for
himself or herself and perform life sustaining activities, then the
plaintiff who experienced the physical injury and all other
plaintiffs who derive their claims from or through such plaintiff
may recover damages for noneconomic loss in a total amount for all
such plaintiffs not to exceed the greater of one million dollars or
the product of the amount calculated on an annual basis pursuant to
article four, chapter twenty-three of this code, which represents
the maximum average weekly wage, annualized, for a worker employed
in this state times the number of years remaining in the
plaintiff's expected life, regardless of the number of parties
against who the action is brought or count have been brought or the
number of claims asserted or actions brought or that could have
been asserted or brought with respect to the injury.
(c) In all actions other than those based on physical injury
in which damages for noneconomic loss were authorized to be
recovered at the time this bill became a law, the plaintiff who
experienced the economic loss on which the action is based and all plaintiffs who derive their claims from or through such plaintiff
may recover damages for noneconomic loss in a total amount for all
such plaintiffs no greater than the award of damages for economic
loss or one million dollars, whichever is less, regardless of the
number of parties against whom the action is brought or could have
been brought or the number of claims asserted or actions brought or
that could have been asserted or brought with respect to the
economic loss.
(d) As used in this section, "physical injury" means an actual
injury to the body proximately caused by the act complained of and
does not include physical symptoms of the mental anguish or
emotional distress for which recovery is sought when such symptoms
are caused by, rather than the cause of, the pain, distress, or
other mental suffering.
(e) As used in this section, "damage" or "damages" means pain,
suffering, inconvenience, physical impairment, disfigurement,
mental anguish, emotional distress, loss of enjoyment of life, loss
of society and companionship, loss of consortium, injury to
reputation, humiliation, loss of earnings and earning capacity,
loss of income, medical expenses and medical care, rehabilitation
services, custodial care, wrongful death, burial costs, loss of use
of property, costs of repair or replacement of property, costs of
obtaining substitute domestic services, loss of employment, loss of
business or employment opportunities, lost profits and other such losses to the extent that recovery for such is allowable under any
present, applicable state law. It does not include punitive
damages.
(f) "Economic loss" means objectively verifiable monetary
losses, such as medical expenses, loss of earnings and earning
capacity, cost of replacement services, loss of income stream due
to death, burial costs, loss of business or employment
opportunities, lost profits, and loss due to property destruction
or damage, to the extent recovery for any such monetary loss is
allowed under any present applicable state law.
(g) As used in this section, "noneconomic loss" means
subjective, nonmonetary losses, such as pain, suffering,
inconvenience, mental anguish, emotional distress, loss of
enjoyment of life, loss of society and companionship, loss of
consortium, injury to reputation, and humiliation, to the extent
recovery for any such nonmonetary loss is allowed under any
present, applicable state law.
(h) This section supersedes, invalidates, and repeals all
other state laws which conflict with its provisions.
(i) This section applies to all causes of action arising on or
after the effective date of its enactment.
(j) The provisions of this section and subparagraph thereof
shall be severable from the provisions of each other subparagraph,
paragraph, subdivision, subsection, section, article, or chapter of this code so that if any provision of this article be held void,
the remaining provisions of this article and this code shall remain
valid.
§55-7-25. Apportionment of damages.
(a) In any case 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 and nonparties to the
action;
(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 fifty 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) Fault of nonparties.
(1) "Fault" means an act or omission of a person, which is a
proximate cause of injury or death to another person or persons,
damage to property, or economic injury, including, but not limited
to, negligence, malpractice, medical professional liability, strict
product liability, absolute liability, liability under section two,
article four, chapter twenty-three of this code, or assumption of
the risk.
(2) In assessing percentages of fault, the trier of fact shall
consider the fault of all persons who contributed to the alleged
damages regardless of whether such person was or could have been
named as a party to the suit. Such fault shall include the fault
imputed or attributed to a person by operation of law, if any.
Fault of a nonparty may be considered if the plaintiff entered into
a settlement agreement with the nonparty or if a defending party
gives notice no later than sixty days before the date of trial that
a nonparty was wholly or partially at fault. The notice shall be
given by filing a pleading or discovery response in the action
designating such nonparty and setting forth nonparty's name and
last-known address, or the best identification of such nonparty
which is possible under the circumstances, together with a brief
statement of the basis for believing such nonparty to be at fault.
In all instances where a nonparty is assessed a percentage of
fault, any recovery by a plaintiff shall be reduced in proportion
to the percentage of fault chargeable to such nonparty. Where a
plaintiff has settled with a party or nonparty before verdict, that
plaintiff's recovery will be reduced by the amount of the
settlement or in proportion to the percentage of fault assigned to
the settling party or nonparty, whichever is greater. The
plaintiff shall promptly and fully inform all other persons against
whom liability is asserted of the terms of any such settlement.
(3) Nothing in this article is meant to eliminate or diminish any defenses or immunities which exist as of the effective date of
this article, except as expressly noted herein.
(4) Assessments of percentages of fault for nonparties are
used only as a vehicle for accurately determining the fault of
named parties. Where fault is assessed against nonparties,
findings of such fault shall not subject any nonparty to liability
in that or any other action, or be introduced as evidence of
liability or for any other purpose in any other action.
(5) In all actions involving fault of more than one person,
unless otherwise agreed by all parties to the action, the court
shall instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings, indicating the percentage of
the total fault that is allocated to each party and nonparty
pursuant to the provisions of this article. For this purpose, the
court may determine that two or more persons are to be treated as
a single person.
(c) Plaintiff involved in felony criminal act.
In any civil action, a defendant is not liable for damages
that the plaintiff suffers as a result of the negligence or gross
negligence of a defendant while the plaintiff is attempting to
commit, committing, or fleeing from the commission of a felony act.
(d) Nothing in this section shall 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 shall 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, chapter fifty-five of this code.
(g) This section shall apply only to causes of action that
accrue on or after the first day of July, two thousand five.
ARTICLE 7E. ASBESTOS AND SILICA COMPENSATION FAIRNESS ACT OF 2005.
§55-7E-1.
Short title.
This article may be cited as the "Asbestos and Silica
Compensation Fairness Act of 2005."
§55-7E-2. Findings and purpose.
(a) The West Virginia Legislature finds that:
(1) Asbestos is a mineral that was widely used prior to the
mid-1970's for insulation, fire-proofing and other purposes;
(2) Millions of American workers and others were exposed to
asbestos, especially during and after World War II and prior to the
promulgation of regulations by the Occupational Safety and Health
Administration in the early 1970's;
(3) Exposure to asbestos has been associated with various
types of cancer, including mesothelioma and lung cancer, as well as such nonmalignant conditions as asbestosis, pleural plaques and
diffuse pleural thickening;
(4) The diseases caused by asbestos often have extensive
latency periods;
(5) Although the use of asbestos has dramatically declined
since the 1970's and workplace exposures have been regulated since
1971 by the Occupational Safety and Health Administration, past
exposures will continue to result in significant claims of death
and disability as a result of such exposure;
(6) West Virginia courts are "deluged with asbestos lawsuits."
State ex rel. Allman v. MacQueen, 209 W.Va.726,731,551S.E.2d
369,374(2001). The Supreme Court of Appeals of West Virginia has
recognized that asbestos cases "present a complex pattern of legal,
social, and political issues that threaten to cripple the common
law system of adjudication, if for no other reason than by the
sheer volume of cases"
State ex rel Appalachian Power Co. v.
MacQueen, 198 W.Va.1,5,479S.E.2d300,303(1996);
(7) Asbestos personal injury litigation can impose a severe
burden on litigants and taxpayers alike;
(8) Reasonable medical criteria are necessary to expedite the
resolution of claims brought by those sick claimants and to ensure
that resources are available for those who are currently suffering
from asbestos-related illnesses and for those who may become sick
in the future;
(9) The cost of compensating exposed individuals who are not
sick jeopardizes the ability of defendants to compensate people
with cancer and other serious asbestos-related diseases, now and in
the future; threatens the savings, retirement benefits and jobs of
the state's current and retired employees; and adversely affects
the communities in which these defendants operate;
(10) Silica is a naturally occurring mineral as the earth's
crust is over ninety percent silica, and crystalline silica dust is
the primary component of sand, quartz and granite;
(11) Silica-related illness, including silicosis, can occur
when an individual inhales respirable silica particles;
(12) Silica claims, like asbestos claims, often arise when an
individual is identified as having markings on his or her lungs
that are possible "consistent with" silica exposure, but the
individual has no functional or physical impairment from any
silica-related disease; therefore, it is necessary to address
silica-related litigation to avoid an asbestos-like litigation
crisis.
(13) Concerns about statutes of limitations can force
claimants who have been exposed to asbestos or silica but who have
no current injury to bring premature lawsuits in order to protect
against losing their rights to future compensation should they
become impaired;
(14) The public interest requires giving priority to the claims of exposed individuals who are sick in order to help
preserve, now and for the future, defendants' ability to compensate
people who develop cancer and other serious asbestos and silica
related injuries and to safeguard the jobs, benefits and savings of
workers in West Virginia and the well-being of the West Virginia
economy.
(b) It is the purpose of this article to:
(1) Give priority to asbestos and silica claimants who can
demonstrate actual physical impairment caused by exposure to
asbestos or silica;
(2) Fully preserve the rights of claims who were exposed to
asbestos or silica to pursue compensation should they become
impaired in the future as a result of such exposure;
(3) Enhance the ability of the judicial systems to supervise
and control asbestos and silica litigation; and
(4) Conserve the scarce resources of the defendants to allow
compensation of cancer victims and others who are physically
impaired by exposure to asbestos or silica while securing the right
to similar compensation for those who may suffer physical
impairment in the future.
§55-7E-3. Definitions.
In this article:
(1) The term "AMA Guides to the Evaluation of Permanent
Impairment" means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fifth Education 2000) as may be
modified from time to time by the American Medical Association.
(2) The term "asbestos" includes all minerals defined as
"asbestos" in 29 CFR 1910 as amended from time to time.
(3) The term "asbestos claim" means any claim for damages,
losses, or other civil or equitable relief arising out of, based
on, or related in any way to the health effects of exposure to
asbestos, including any claim for current or future medical
monitoring and/or surveillance. "Asbestos claim" includes a claim
made by or on behalf of any person who has been exposed to
asbestos, or any representative, spouse, parent, child or other
relative of that person, including loss of consortium or wrongful
death. The term does not include claims for benefits under a
Workers' Compensation Law or Veterans' Benefits Program, or claims
brought by any person as a subrogee by virtue of the payment of
benefits under a Workers' Compensation Law.
(4) The term "asbestosis" means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
(5) The term "Board-certified in internal medicine" means a
physician who is certified by the American Board of Internal
Medicine or the American Osteopathic Board of Internal Medicine.
(6) The term "Board-certified in occupational medicine" means
a physician who is certified in the subspecialty of occupational
medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine.
(7) The term "Board-certified in oncology" means a physician
who is certified in the subspecialty of medical oncology by the
American Board of Internal Medicine or the American Osteopathic
Board of Internal Medicine.
(8) The term "Board-certified in pathology" means a physician
who holds primary certification in anatomic pathology or clinical
pathology from the American Board of Pathology or the American
Osteopathic Board of Internal Medicine and whose professional
practice:
(A) Is principally in the field of pathology; and
(B) Involves regular evaluation of pathology materials
obtained from surgical or postmortem specimens.
(9) The term "Board-certified in pulmonary medicine" means a
physician who is certified in the subspecialty of pulmonary
medicine by the American Board of Internal Medicine or the American
Osteopathic Board of Internal Medicine.
(10) The term "certified B-reader" means an individual
qualified as a "final" or "B-reader" under 42 CFR 37.51(b) as
amended.
(11) The term "civil action" means all suits or claims of a
civil nature in court, whether cognizable as cases at law or in
equity or in admiralty. The term does not include an action
relating to any Workers' Compensation Law, or a proceeding for benefits under any veterans' benefits program.
(12) The term "exposed person" means any person whose exposure
to asbestos, asbestos-containing products, silica, or silica-
containing products serves as the basis for a claim.
(13) The term "exposure years" means:
(A) Each single year of exposure prior to 1972 will be counted
as one year;
(B) Each single year of exposure from one thousand-nine
hundred seventy -two through one thousand nine hundred seventy-nine
will be counted as one-half year;
(C) Exposure after one thousand nine hundred seventy-nine will
not be counted, except that each year from one thousand nine
hundred seventy-two forward for which the plaintiff can establish
exposure exceeding the OSHA limit for 8-hour time-weighted average
airborne concentration for a substantial portion of the wear will
count as one year.
(14) The term "FEV1" means forced expiratory volume in the
first second, which is the maximal volume of air expelled in one
second during performance of simple spirometric tests.
(15) The term "FVC" means forced vital capacity which is the
maximal volume of air expired with maximum effort from a position
of full inspiration.
(16) The term "ILO Scale" means the system for the
classification of chest X rays set forth in the International Labor Office's Guidelines for the Use Of ILO International Classification
of Radiographs of Pneumoconiosis (1980) as amended from time to
time by the International Labor Office.
(17) The term "lung cancer" means a malignant tumor in which
the primary site of origin of the cancer is inside of the lungs,
but such term does not include an asbestos claim based upon
mesothelioma.
(18) The term "mesothelioma" means a malignant tumor with a
primary site of origin in the pleura or the peritoneum, which has
been diagnosed by a board-certified pathologist, using standardized
and accepted criteria of microscopic morphology and/or appropriate
staining techniques.
(19) The term "nonmalignant condition" means any condition
that is caused or may be caused by asbestos other than a diagnosed
cancer.
(20) The term "nonsmoker" means the exposed person has not
smoked cigarettes or used any other tobacco products within the
last fifteen years.
(21) The term "pathological evidence of asbestosis" means a
statement by a board-certified pathologist that more than one
representative section of lung tissue uninvolved with any other
disease process demonstrates a pattern of peribronchiolar or
parenchyma scarring in the presence of characteristic asbestos
bodies and that there is no other more likely explanation for the presence of the fibrosis.
(22) The term "physical impairment" means:
(A) a non-malignant asbestos claim that meets the requirements
specified in the section of 4(b) of this Act;
(B) An asbestos-related lung cancer claims that meets the
requirements specified in section 4(c) of this Act;
(C) An asbestos-related other cancer claim that meets the
requirements specified in section 4(d) of this Act;
(D) A silicosis claim that meet the requirements specified in
section 4(f) of this Act;
(E) Other silica claims that meet the requirements specified
in section 4(g) of this Act;
(23) The term "predicted lower limit of normal" for any test
means the fifth percentile of healthy populations based on age,
height, and gender, as referenced in the AMA Guides to the
Evaluation of Permanent Impairment.
(24) The term "qualified physician" means a medical doctor,
who:
(A) Is a currently board-certified internist, oncologist,
pathologist, pulmonary specialist, radiologist, or specialist in
occupational and environmental medicine;
(B) Has conducted a physical examination of the exposed
person;
(C) Is actually treating or has treated the exposed person, and has or had a doctor-patient relationship with such person;
(D) Is currently licensed to practice and actively practices
in the state where the plaintiff resides or in West Virginia; and
(E) Receives or received payment for the treatment of the
exposed person from that person's health maintenance organization,
other medical provider, from the exposed person, or from a member
of the exposed person's family.
(25) The term "radiological evidence of asbestosis" means a
quality 1 chest X ray under the ILO System of classification (in a
death case where no pathology is available, the necessary
radiologic findings may be made with a quality 2 film of a quality
1 film is not available) showing small, irregular opacities (s,t,u)
graded by a certified B-reader as at least 1/1 on the ILO scale.
(26) The term "radiological evidence of diffuse pleural
thickening" means a quality 1 chest X ray under the ILO System of
classification (in a death case where no pathology is available,
the necessary radiologic findings may be made with a quality 2 film
if a quality 1 film is available) showing bilateral pleural
thickening of at least B2 on the ILO scale and blunting of at least
one costo phrenic angle.
(27) The term "silica" means a respirable crystalline form of
silicon dioxide, including, but not limited to, alpha, quartz,
cristobalite, and trydmite.
(28) The term "silica claim" means any claim for damages, losses, or other civil or equitable relief arising out of, based
on, or related in any way to the health effects of exposure to
silica, including any claim for current or future medical
monitoring and/or surveillance. "Silica claim" includes a claim
made by or on behalf of any person who has been exposed to silica,
or any representative, spouse, parent, child, or other relative of
that person, for injury, including loss of consortium or wrongful
death. The term does not include claims for benefits under a
workers' compensation law or veterans' benefits program, or claims
brought by any person as a subrogee by virtue of the payment of
benefits under a workers' compensation law.
(29) The term "smoker" means a person who has smoked
cigarettes or used other tobacco products which are smoked within
the last fifteen years.
(31) The term "substantial contributing factor" means:
(A) Exposure to asbestos or silica is the predominate cause of
the physical impairment alleged in the claim;
(B) The exposure to asbestos or silica took place on a regular
basis over an extended period of time and in close proximity to the
exposed person; and
(C) A qualified physician has determined with a reasonable
degree of medical certainty that the physical impairment of the
exposed person would not have occurred but for the asbestos or
silica exposures.
(32) The term "veterans" benefits program" means any program
for benefits in connection with military service administered by
the Veterans' Administration under title 38, United States Code.
(33) The term "workers' compensation law" means W.Va. Code
§23-1-1 et seq., as amended, or any program administered by another
state or the United States to provide benefits, funded by a
responsible employer or its insurance carrier, for occupational
diseases or injuries or for disability or death caused by
occupational diseases or injuries. The term includes the Longshore
and Harbor Workers' Compensation Act (33 U.S.C. 901-944, 948-950),
and chapter 81 of title 5, United States Code (known as the Federal
Employees Compensation Act), but does not include the act of April
22, 1908 (45 U.S.C.51 et seq.) (Popularly referred to as the
"Federal Employers" Liability Act).
§55-7E-4. Physical impairment.
(a) IMPAIRMENT ESSENTIAL ELEMENT OF CLAIM- Physical impairment
of the exposed person, to which asbestos or silica exposure was a
substantial contributing factor, shall be an essential element of
an asbestos or silica claim.
(b) PRIMA FACIE EVIDENCE OF PHYSICAL IMPAIRMENT FOR
NONMALIGNANT ASBESTOS CLAIMS- No person shall bring or maintain a
civil action alleging a nonmalignant asbestos claim in the absence
of a prima facie showing of physical impairment as a result of a
medical condition to which exposure to asbestos was a substantial contributing factor. Such a prima facie showing shall include all
of the following minimum requirements:
(1) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person
or, if such person is deceased, from a person who is knowledgeable
about the exposures that form the basis of the nonmalignant
asbestos claim including:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including but not limited to asbestos fibers
or other disease causing dusts) that can cause pulmonary impairment
and the nature, duration and level of any such exposure.
(2) Evidence verifying that a qualified physician has taken a
detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause.
(3) Evidence sufficient to demonstrate that at least ten years
have elapsed between the date of first exposure to asbestos and the
date of diagnosis.
(4) A determination by a qualified physician, on the basis of
a medical examination and pulmonary function testing, that the
exposed person has a permanent respiratory impairment rating of at
least Class 2 as defined by and evaluated pursuant to the AMA Guides to the Evaluation of Permanent Impairment.
(5) A diagnosis by a qualified physician of asbestosis or
diffuse pleural thickening, based at a minimum on radiological or
pathological evidence of asbestosis or radiological evidence of
diffuse pleural thickening.
(6) A determination by a qualified physician that asbestosis
or diffuse pleural thickening (rather than chronic obstructive
pulmonary disease) is a substantial contributing factor to the
exposed person's physical impairment, based at a minimum on a
determination that the exposed person has;
(A) Total lung capacity, by plethysmography or timed gas
dilution, below the predicted lower limit of normal;
(B) Forced vital capacity below the lower limit of normal and
a ratio of FEVj to FVC that is equal to or greater than the
predicted lower limit of normal; or
(C) A chest x-ray showing small, irregular opacities (s,t,u)
graded by a certified B-reader at least 2/1 on the ILO scale.
(7) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion
which states that the medical findings and impairment are
"consistent with" or "compatible with" exposure to asbestos does
not meet the requirements of this subsection.
(c)
Prima facie evidence of physical impairment for asbestos-
related lung cancer claims.-- No person shall bring or maintain a
civil action alleging an asbestos claim which is based upon lung
cancer, in the absence of a prima facie showing which shall include
all of the following minimum requirements:
(1) Diagnosis by a qualified physician who is board-certified
in pathology, pulmonary medicine, or oncology of a primary lung
cancer and that exposure to asbestos was a substantial contributing
factor to the condition.
(2) Evidence sufficient to demonstrate that at least ten years
have elapsed between the date of first exposure to asbestos and the
date of diagnosis of the lung cancer.
(3) Depending on whether the exposed person has a history of
smoking, the requirements of either (A) or(B) below.
(A)
In the case of an exposed person who is a nonsmoker,
either.--
(i) Radiological or pathological evidence of asbestosis; or
(ii) Evidence of occupational exposure to asbestos for the
following minimum exposure periods in the specified occupations:
(1) Five exposure years for insulators, shipyard workers,
workers in manufacturing plants handling raw asbestos,
boilermakers, shipfitters, steamfitters, or other trades performing
similar functions;
(II) Ten exposure years for utility and power house workers, secondary manufacturing workers, or other trades performing similar
functions; or
(III) Fifteen exposure years for general construction,
maintenance workers, chemical and refinery workers, marine engine
room personnel and other personnel on vessels, stationary engineers
and firemen, railroad engine repair workers, or other trades
performing similar functions;
(B) In the case of an exposed person who is a smoker, the
criteria contained in both (A)(i) and (A)(ii) must be met.
(C) If the exposed person is deceased, the qualified physician
may obtain the evidence required in subsection (c)(2) and
(c)(3)(A)(ii) from the person most knowledgeable about the alleged
exposures that form the basis of the asbestos claim.
(4) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion that
the medical findings and impairment are "consistent with" exposure
to asbestos does not meet the requirements of this subsection.
(d)
Prima facie evidence of asbestos-related other cancer
claims. -- No person shall bring or maintain a civil action
alleging an asbestos claim which is based upon cancer of the colon,
rectum, larynx, pharynx, esophagus, or stomach, in the absence of
a prima facie showing which shall include all of the following minimum requirements:
(1) A diagnosis by a qualified physician who is
board-certified in pathology, pulmonary medicine or oncology (as
appropriate for the type of cancer claimed) of primary cancer of
the colon, rectum, larynx, pharynx, esophagus, or stomach, and that
exposure to asbestos was a substantial contributing factor to the
condition.
(2) Evidence sufficient to demonstrate that at least ten years
have elapsed between the date of first exposure to asbestos and the
date of diagnosis of the cancer.
(3) The requirements of either (A) or (B) below.
(A) Radiological or pathological evidence of asbestosis;
(B) Evidence of occupational exposure to asbestos for the
following minimum exposure periods in the specified occupations:
(i) Five exposure years for insulators, shipyard workers,
workers in manufacturing plants handling raw asbestos,
boilermakers, shipfitters, steamfitters, or other trades performing
similar functions;
(ii) Ten exposure years for utility and power house workers,
secondary manufacturing workers, or other trades performing similar
functions; or
(iii) Fifteen exposure years for general construction,
maintenance workers, chemical and refinery workers, marine engine
room personnel and other personnel on vessels, stationary engineers and firemen, railroad engine repair workers, or other trades
performing similar functions.
(C) If the exposed person is deceased, the qualified physician
may obtain the evidence required in subsection (d)(2) and (d)(3)(B)
from the person most knowledgeable about the alleged exposures that
form the basis of the asbestos claim.
(4) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than the asbestos exposure revealed by the
exposed person's employment and medical history. A conclusion that
the medical findings and impairment are "consistent with" or
"compatible with" exposure to asbestos does not meet the
requirements of this subsection.
(e)
No prima facie requirement for mesothelioma. -- In a civil
action alleging an asbestos claim based upon mesothelioma, no prima
facie showing is required.
(f)
Prima facie evidence of physical impairment for silicosis
claims. -- No person shall bring or maintain a civil action
alleging a silicosis claim in the absence of a prima facie showing
of physical impairment as a result of a medical condition to which
exposure to silica was a substantial contributing factor. Such a
prima facie showing shall include all of the following minimum
requirements:
(1) Evidence verifying that a qualified physician has taken a detailed occupational and exposure history of the exposed person
or, if such person is deceased, from a person who is knowledgeable
about the exposures that form the basis of the nonmalignant silica
claim, including:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including, but not limited to, silica
particles or other disease-causing dusts) that can cause pulmonary
impairment and the nature, duration and level of any such exposure.
(2) Evidence verifying that a qualified physician has taken
detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause, and verifying a sufficient latency period for
the applicable stage of silicosis;
(3) A determination by a qualified physician, on the basis of
a medical examination and pulmonary function testing, that the
exposed person has a permanent respiratory impairment rating of at
least Class 2 as defined by and evaluated pursuant to the AMA
Guides to the Evaluation of Permanent Impairment.
(4) A determination by a qualified physician that the exposed
person has:
(A) A quality one chest X ray under the ILO System of
classification (in a death case where no pathology is available, the necessary radiologic findings may be made with a quality two
film if a quality one film is not available,) and that the X ray
has been read by a certified board-reader as showing, according to
the ILO System of classification, bilateral nodular opacities (p,
q, or r) occurring primarily in the upper lung fields, graded 1/1
or higher; or
(B) Pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112 Archive of
Pathology and Laboratory Medicine seven (7) (July, one thousand
nine hundred eighty-eight);
(5) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements
of this subsection.
(g)
Prima facie evidence of physical impairment for other
silica-related claims. -- No person shall bring or maintain a civil
action alleging any silica claim other than as provided in
subsection (f) above in the absence of a prima facie showing which
shall include the following minimum requirements:
(1) A report by a qualified physician who is:
(A) Board-certified in pulmonary medicine, internal medicine, oncology or pathology stating a diagnosis of the exposed person of
silica-related lung cancer and stating that, to a reasonable degree
of medical probability, exposure to silica was a substantial
contributing factor to the diagnosed lung cancer; or
(B) Board-certified in pulmonary medicine, internal medicine
or pathology stating a diagnosis of the exposed person of
silica-related progressive massive fibrosis or acute
silicoproteinosis, or silicosis complicated by documented
tuberculosis;
(2) Evidence verifying that a qualified physician has taken a
detailed occupational and exposure history of the exposed person
or, if such person is deceased, from a person who is knowledgeable
about the exposures that form the basis of the other silica-related
claim; including:
(A) Identification of all of the exposed person's principal
places of employment and exposures to airborne contaminants; and
(B) Whether each place of employment involved exposures to
airborne contaminants (including but not limited to silica
particles or other disease causing dusts) that can cause pulmonary
impairment and the nature, duration and level of any such exposure.
(3) Evidence verifying that a qualified physician has taken
detailed medical and smoking history, including a thorough review
of the exposed person's past and present medical problems and their
most probable cause;
(4) a determination by a qualified physician that the exposed
person has:
(A) A quality 1 chest X ray under the ILO System of
classification (in a death case where no pathology is available,
the necessary radiologic findings may be made with a quality 2 film
if a quality 1 film is not available), and that the X ray has been
read by a certified B-reader as showing, according to the ILO
System of classification, bilateral nodular opacities (p.q, or r)
occurring primarily in the upper lung fields, graded 1/1 or higher;
or
(B) Pathological demonstration of classic silicotic nodules
exceeding one centimeter in diameter as published in 112 Archive of
Pathology and Laboratory Medicine 7 (July 1988);
(5) A conclusion by a qualified physician that the exposed
person's medical findings and impairment were not more probably the
result of causes other than silica exposure revealed by the exposed
person's employment and medical history. A conclusion that the
medical findings and impairment are "consistent with" or
"compatible with" exposure to silica does not meet the requirements
of this subsection.
(h) Compliance with technical standards - Evidence relating to
physical impairment under this section, including pulmonary
function testing and diffusing studies, shall:
(1) Comply with the technical recommendations for examinations, testing procedures, quality assurance, quality
control and equipment of the AMA Guides to the Evaluation of
Permanent Impairment, as set forth in 2d C.F.R. Pt, 404, Subpt. P.
Appl., Part A, Section 3.00 E. and F., and the interpretive
standards, set forth in the official statement of the American
Thoracic Society entitled "lung function testing: Selection of
reference values and interpretive strategies" as published in
American Review of Respiratory Disease. 1991: 144:1202-1218;
(2) Not be obtained through testing or examinations that
violate any applicable law, regulation, licensing requirement or
medical code of practice; and
(3) Not be obtained under the condition that the exposed
person retain legal service in exchange for the examination, test
or screening.
(i)
No presumption at trial. -- Presentation of prima facie
evidence meeting the requirements of subsection (b), (c), (d), (f)
or (g) of this section shall not:
(1) Result in any presumption at trial that the exposed person
is impaired by an asbestos or silica related condition;
(2) Be conclusive as to the liability of any defendant; or
(3) Be admissible at trial.
§55-7E-5. Procedures.
(a)
Preliminary proceedings. -- The plaintiff in any civil
action alleging an asbestos or silica claim shall file together with the complaint or other initial pleading a written report and
supporting test results constituting prima facie evidence of the
exposed person's asbestos or silica related physical impairment
meeting the requirements of subsections (b), (c), (d), (f) or (g)
of section four of this article. For any asbestos or silica claim
pending on the effective date of this article, the plaintiff shall
file such a written report and supporting test results no later
than sixty days following the effective date, or no later than
thirty days prior to the commencement of trial. The defendant
shall be afforded a reasonable opportunity to challenge the
adequacy of the proffered prima facie evidence of asbestos-related
impairment. Upon a finding that the written report and test
results fail to make the required prima facie showing, the court
shall place the claim on an inactive docket and maintain
jurisdiction over those claims. Any plaintiff whose claim has been
placed on an inactive docket under this subsection may move to
reinstate the claim by filing a motion accompanied by a written
report and supporting test results meeting the requirements of
subsections (b), (c), (d), (f) and (g) of section four of this
article.
(b)
General rules applicable to new filings. --
(1) All asbestos claims and silica claims filed in this state
on or after the effective date of this article shall include (in
addition to the written report described in subsection four and the information required by subdivision (1), subsection five herein) a
sworn information form containing the following information:
(i) The claimant's name, address, date of birth, social
security number and marital status;
(ii) If the claimant alleges exposure to asbestos or silica
through the testimony of another person or other than by direct or
bystander exposure to a produce(s), the name, address, date of
birth, social security number, marital status, for each person by
which the claimant alleges exposure (hereinafter the "index
person:) and the claimant's relationship to each person;
(iii) The specific location of each alleged exposure;
(iv) The beginning and ending dates of each alleged exposure
as to each asbestos product or silica product for each location at
which exposure allegedly took place for the plaintiff and each
index person;
(v) The occupation and name of the employer of the exposed
person at the time of each alleged exposure;
(vi) The specific condition related to asbestos or silica
claimed to exist; and
(vii) Any supporting documentation of the condition claimed to
exist.
§55-7E-6. Statute of limitations; two-disease rule.
(a)
Statute of limitations. -- Notwithstanding any other
provision of law, with respect to any asbestos or silica claim not time-barred as of the effective date of this article, the
limitations period shall not begin to run until the exposed person
discovers, or through the exercise of reasonable diligence should
have discovered, a physical impairment (as defined by this article
caused by exposure to asbestos or silica.
(b)
Two-disease rule. -- An asbestos or silica claim arising
out of a nonmalignant condition shall be a distinct cause of action
from an asbestos or silica claim relating to the same exposed
person arising out of asbestos or silica related cancer. No damages
shall be awarded for fear or risk of cancer in any civil action
asserting an asbestos or silica claim.
(c)
General releases from liability prohibited. -- No
settlement of a nonmalignant asbestos or silica claim concluded
after the date of enactment shall require, as a condition of
settlement, release of any future claim for asbestos or silica
related cancer.
§55-7E-7. Consolidation.
(a) The Legislature of West Virginia finds that defendants are
often forced to settle unmeritorious claims because they know that
they will face trial where the claim of one plaintiff who is truly
sick is bundled (or consolidated) with numerous claims from
plaintiffs who are not. Plaintiffs' attorneys will often refuse to
settle serious claims unless their other claims inventories of
unimpaired claimants are also settled. Federal courts have noted that when the claims of numerous plaintiffs with dissimilar alleged
injuries and factual situations are tried together, "the maelstrom
of fact, figures and witness" is likely to lead to jury confusion
and an unfair trial.
(Malcolm v. National Gypsum Co., 995 F2d 346,
352 (2d Cir. 1993))
(b) The Legislature of West Virginia acknowledges the Supreme
Court's authority in prescribing rules governing practice and
procedure in the courts of this state, as provided by Section 3,
Article VIII of the West Virginia Constitution.
(c) The Legislature of West Virginia hereby requests the
Supreme Court to adopt rules to specify procedures for
consolidation of asbestos or silica claims, brought pursuant to the
provisions of this article.
(d) With respect to procedures for consolidation of asbestos
or silica claims, the Legislature of West Virginia hereby requests
the Supreme Court to adopt a rule that permits consolidation of
asbestos or silica claims for trial only with the consent of all
parties, or permits a court to consolidate for trial only those
asbestos or silica claims that relate to the same exposed person
and members of the exposed person's household.
§55-7E-8. Effective date.
This articles shall be effective on the date of the enactment
of this article and apply to any civil action asserting an asbestos
or silica claim in which trial has not commenced as of the date of the enactment of this article.
§55-7E-9. Severability.
If any provision of this article is held invalid, such
invalidity shall not affect the other provisions or applications of
this article, and to this end, any such provision is deemed
severable.
§55-7E-10. Miscellaneous provisions.
Construction with other laws. --
This article shall not be construed to affect the scope or
operation of any Workers' Compensation Law or Veterans' Benefit
Program, to affect the exclusive remedy or subrogation provisions
of any such law, or to authorize any lawsuit which is barred by any
such provision of law.
NOTE: The purpose of this bill is to define "deliberate
intention"; prohibit an employee from recovering for an injury that
was self inflicted; Asbestos and Silica Compensation Fairness Act
of 2005, which provides for certain judicial standards and
procedures for personal injury and wrongful death claims arising
out of asbestos or silica exposure. Towards this end the bill (1)
provides a short title; (2) sets forth findings and purpose; (3)
sets forth definitions; (4) sets forth legal standards and
procedures for establishing physical impairment; (5) prescribes
statute of limitation standards; and (6) requests the State Supreme
Court to permit consolidation of asbestos or silica claims for
trial.
Article 7E, chapter 55 is new; therefore, strike-throughs and
underscoring have been omitted.
§55-7-23 §55-7-24 and §55-7-25 are new; therefore,
strike-throughs and underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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