Senate Bill No. 81
(By Senators Rowe and Caldwell)
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[Introduced January 14, 2004; 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 §56-4-72, relating to
creating a notice legal action for injury and contract claims
to toll limitation periods for one hundred eighty days without
the necessity of naming defendants responsible for alleged
damages.
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
§56-4-72, to read as
follows:
ARTICLE 4. RULES AND PLEADING.
§56-4-72. Notice of a bona fide claim.
(a) A person or entity seeking damages for personal injury or
property or contract damages may commence a notice legal action by
filing a notice of bona fide claim for damages stating facts giving rise to the claim and the damages sought for the claim. Persons
and entities alleged to be responsible for those damages may be
named or not named in the notice pleading. No service of the
notice and no response to the notice by any person or entity is
required.
(b) If any period of limitation or repose has not expired as
of the time of the filing of the notice, the running of the period
shall be tolled for one hundred eighty days from the date of the
filing of the notice of bona fide claim. The notice legal action
may not extend any period of limitation or repose which has expired
before the filing of the notice of bona fide claim for damages.
(c) A complaint naming one or more defendants may be filed in
the notice legal action or in other legal actions within the one
hundred eighty-day period. Only after a complaint naming one or
more defendants has been filed may any court proceedings be
instituted including the conduct of civil discovery proceedings.
(d) If a complaint, or complaints, naming one or several
defendants is filed but not part of the notice legal action, the
running of the period of limitation or repose for such other
actions shall be tolled for the term of the one hundred eighty-day
period of the notice legal action.
(e) If no complaint is filed in the notice legal action, on
the one hundred eighty-first day after the notice is filed, the
notice legal action shall be automatically dismissed from the docket of the court, without prejudice to the plaintiff who filed
the notice of bona fide claim for damages, with no order of the
court or special action of the clerk of the court required.
NOTE: The purpose of this bill is to create a civil notice
legal action to toll the running of limitation periods without the
necessity of naming all defendants alleged to be responsible for
the plaintiff's damages. The limitation period is tolled for one
hundred eighty days during which a legal action may be filed naming
defendants.
The bill is intended to prevent parties not responsible for
damages from being named needlessly in a legal action filed just
before a statutory limitation period is to expire. Currently,
plaintiffs name multiple defendants in lawsuits to be certain all
possible responsible parties are included before a limitation
period expires, out of concern that a responsible party named late
would escape liability and the plaintiff's claim against other
parties would fail.
The effect of the bill would allow for settlements by
insurance companies to be completed at or near the expiration of a
limitation period without their insureds being unnecessarily named
as defendants in a lawsuit. The current practice of agreed
extensions of time to file lawsuits create confusion and conflict
with the insureds and other insurance carriers.
The bill would save the insurance company the cost of hiring
a defense attorney for a legal action after a complaint is filed
naming its insured as a defendant.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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