WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTY-SECOND LEGISLATURE
REGULAR SESSION, 2015
TWENTY-SEVENTH DAY
____________
Charleston, W. Va., Monday, February 9, 2015
The Senate met at 11 a.m.
(Senator Cole, Mr. President, in the Chair.)
Prayer was offered by the Reverend Jim Walther, Jr., St. Andrew Presbyterian Church, Pinch, West Virginia.
The Senate was then led in recitation of the Pledge of Allegiance by the Honorable Herb Snyder, a senator from the sixteenth district.
Pending the reading of the Journal of Friday, February 6, 2015,
On motion of Senator Walters, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. House Bill No. 2004--A Bill to amend and reenact §22-5-20 of the Code of West Virginia, 1931, as amended, relating to the development of a state plan under Section 111(d) of the Clean Air Act; setting forth legislative findings; prohibiting submission of a state plan without authority; requiring the Department of Environmental Protection to study the feasibility of a state plan; requiring the Department of Environmental Protection to submit a report to the Legislature determining whether a state plan is feasible; allowing for the development of a proposed state plan; allowing for legislative review and consideration prior to submission of a state plan to the Environmental Protection Agency; and creating exceptions to the legal effect of the state plan.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2008--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17-2A-6a, relating to an independent audit of the Division of Highways; establishing criteria for selection of the auditor; establishing terms of the audit; and providing for costs associated with the audit.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2151--A Bill to amend and reenact §18-2-1 of the Code of West Virginia, 1931, as amended, relating to making the West Virginia State Teacher of the Year an ex officio, nonvoting member of the West Virginia Board of Education; and providing reasonable and necessary expenses therefor.
Referred to the Committee on Education.
The Senate proceeded to the fourth order of business.
Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Com. Sub. for Senate Bill No. 243 (originating in the Committee on Education), Relating to school nutrition standards during state of emergency or preparedness.
And reports back a committee substitute for same with the following title:
Com. Sub. for Com. Sub. for Senate Bill No. 243 (originating in the Committee on the Judiciary)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-5-6a, relating to school nutrition standards during a state of emergency or state of preparedness; authorizing Governor or Legislature to temporarily suspend legislative rules establishing nutrition standards for foods and beverages served to students in public schools during a state of emergency or state of preparedness; providing limitations thereon; and requiring reporting to the Joint Committee on Government and Finance.
With the recommendation that the committee substitute for committee substitute do pass.
Respectfully submitted,
Charles S. Trump IV,
Chair.
Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 370, Reorganizing Governor's Committee on Crime, Delinquency and Correction and its subcommittees.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Charles S. Trump IV,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance, with an amendment from the Committee on the Judiciary pending.
Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 430, Permitting mutual orders enjoining certain contact between parties to domestic relations actions.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 430 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §48-27-507 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §51-2A-2a, all relating to exempting mutual orders enjoining certain contact between parties to a domestic relations action from the prohibition against mutual protective orders; authorizing family courts of the state to enter mutual orders enjoining certain contact between parties to a domestic relations action; providing for certain terms and effective length of such orders; authorizing family court to enforce its order through an order of contempt; and expressing intent of the Legislature.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Charles S. Trump IV,
Chair.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senators Blair, D. Hall, Boso, Carmichael, Kirkendoll, Laird, Stollings, Trump, Williams, Prezioso, Plymale, Gaunch and Walters:
Senate Bill No. 435--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §7-26-1, §7-26-2, §7-26-3, §7-26-4, §7-26-5, §7-26-6 and §7-26-7, all relating to creating West Virginia Sheriffs’ Bureau of Professional Standards.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
By Senator Nohe:
Senate Bill No. 436--A Bill to repeal §29-5A-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §29-5A-1, §29-5A-2, §29-5A-3, §29-5A-3a, §29-5A-5, §29-5A-6, §29-5A-8, §29-5A-17, §29-5A-19, §29-5A-20 and §29-5A-24 of said code, all relating generally to the State Athletic Commission; changing composition of commission; providing that office of the commission be located in office of Lottery Commission; proposing of rules; requiring commission to follow the unified rules of boxing adopted by the Association of Boxing Commissions and requirements; expenses of commission; increasing payments to referees, judges and timekeepers; weight of boxers; and increasing certain licensing fees.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Prezioso, Beach, Carmichael, D. Hall, Kessler, Walters, Williams and Plymale:
Senate Bill No. 437--A Bill to amend and reenact §5-16-4 of the Code of West Virginia, 1931, as amended, relating to membership of Public Employees Insurance Agency finance board.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Palumbo, Gaunch, Kessler, Miller, Sypolt, Plymale, Laird, Prezioso, Walters and Stollings:
Senate Bill No. 438--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60-4-24, relating to implementing a surcharge on licensed exotic entertainment facilities and adult bookstores to provide funding for rape information and prevention services and rape crisis centers; findings; reporting requirements; creating Sexual Assault Fund to End Rape; providing for dispersal of grants for rape information and prevention services and rape crisis centers; providing for rulemaking; defining a term; and providing for a civil penalty.
Referred to the Committee on Finance.
By Senators Prezioso, Carmichael, Gaunch, D. Hall, Kessler, Leonhardt, Walters, Williams, Plymale and Beach:
Senate Bill No. 439--A Bill to repeal §18B-7-16 of the Code of West Virginia, 1931, as amended; to amend and reenact §18B-2A-3 and §18B-2A-4 of said code; to amend and reenact §18B-4-2a of said code; to amend and reenact §18B-7-1, §18B-7-2, §18B-7-8, §18B-7-9 and §18B-7-11 of said code; to amend and reenact §18B-9-1 and §18B-9-2 of said code; to amend and reenact §18B-9A-1, §18B-9A-2, §18B-9A-3, §18B-9A-4, §18B-9A-5, §18B-9A-6 and §18B-9A-7 of said code; and to amend said code by adding thereto a new article, designated §18B-9B-1, all relating to public education higher education personnel generally; clarifying roles of Higher Education Policy Commission, Council for Community and Technical College Education and state organizations of higher education; eliminating outdated and redundant reporting requirements; clarifying duties of vice chancellor for human resources of the Higher Education Policy Commission; mandating periodic human resource reviews by state organizations of higher education; providing legislative purposes and intent for higher education personnel; defining terms; providing for evaluation and reviews of organizations for certain human resource deficiencies, best practices and compliance with state higher education personnel laws; providing limitations relating to percentages of employees designated as "nonclassified" with certain exceptions; establishing formulas for calculating percentage of nonclassified employees; clarifying that certain provisions are only applicable to classified employees; clarifying powers and duties of the Compensation Planning and Review Committee; providing that the Higher Education Policy Commission shall develop a model minimum salary schedule using West Virginia Workforce data that organizations shall follow except in certain instances; eliminating requirement that salary schedules fall within relative market equity; providing that the Higher Education Policy Commission in developing salary schedules for classified employees shall consider equity and the amount necessary to earn a living wage; providing for organizational accountability in human resources and a mechanism by which state organizations of higher education may dispute deficiency findings; providing state organizations of higher education with the ability to propose and implement approved legislative rules relating to classification and compensation with certain exceptions; requiring state organizations of higher education proposing legislative rules create classification and compensation committees; and requiring any rule proposed by a state organization of higher education incorporate best human resources practices, address areas of accountability, employee classification and compensation and performance evaluation.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Cole (Mr. President) and Kessler (By Request of the Executive):
Senate Bill No. 440--A Bill making a supplementary appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending June 30, 2015, to the Department of Commerce, Workforce West Virginia - Workforce Investment Act, fund 8749, fiscal year 2015, organization 0323, and to the Department of Commerce, Office of the Secretary - Office of Economic Opportunity - Community Services, fund 8781, fiscal year 2015, organization 0327, by supplementing and amending the appropriation for the fiscal year ending June 30, 2015.
Referred to the Committee on Finance.
By Senators Cole (Mr. President) and Kessler (By Request of the Executive):
Senate Bill No. 441--A Bill supplementing, amending, decreasing and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation, Division of Highways, fund 9017, fiscal year 2015, organization 0803, for the fiscal year ending June 30, 2015.
Referred to the Committee on Finance.
By Senator Carmichael:
Senate Bill No. 442--A Bill to amend and reenact §56-6-31 of the Code of West Virginia, 1931, as amended, relating to interest on judgments or decrees; specifying interest is simple interest, not compounding; and modifying rates.
Referred to the Committee on the Judiciary.
Senators Unger, Snyder, Plymale, Beach, Kessler, Stollings and Prezioso offered the following resolution:
Senate Resolution No. 24--Recognizing Leadership Jefferson for its service, dedication and commitment to Jefferson County.
Whereas, The objective of Leadership Jefferson is to promote knowledge and awareness of the problems, opportunities and issues facing Jefferson County; and
Whereas, Leadership Jefferson is designed to provide a series of educational and participatory experiences, as well as an opportunity for dialogue and the development of a correlation among participants in order to encourage local participation in the growth of Jefferson County; and
Whereas, The membership of Leadership Jefferson includes individuals from nearly every facet of Jefferson County’s business, professional, religious, governmental, educational, civic, the arts, organized labor and minority organizations who demonstrate a commitment to the community; and
Whereas, The 2015 membership of Leadership Jefferson consists of Elaine Bartoldson, Eastern Panhandle Transit Authority; Kevin Boyce, Jefferson County Sheriff’s Dept.; Melissa Boyce, Harpers Ferry National Park; Donald Breon, Jefferson Medical Center; Danesia Chicchirichi, Jefferson County Chamber; Anthony Delligatti, Skinner Law Firm; Michele Goldman, Charles Town Health Right, Inc.; Vicky Hadee, Hollywood Casino; Michelle Hammer, Harpers Ferry National Park; Mary Harrington, Hollywood Casino; Catherine Kerns, City National Bank; Melissa Kerr, Jefferson Medical Center; Geoffrey Koch, APUS; Rachel Potts, Teacher of the Year; Cathy Reifer, Panhandle Home Health; Breanne Rugh, United Way; Brett Sullivan, Inn at Charles Town; Raymond Visconti, Harpers Ferry Medicine; Aaron Watson, Independent Fire Company; Michael Whalton, Eastern WV Community Foundation; and Todd Wilt, City of Charles Town; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes Leadership Jefferson for its service, dedication and commitment to Jefferson County; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate officials of Leadership Jefferson.
At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Carmichael, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and proceeded to the seventh order of business.
Senate Concurrent Resolution No. 22, Requesting DOH name portion of U. S. Rt. 119 in Boone County "U. S. Army SGT Mark Andrew Messer Memorial Road".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 187, Authorizing Department of Revenue promulgate legislative rules.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel and Cole (Mr. President)--33.
The nays were: None.
Absent: Yost--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 187) passed with its title.
Senator Carmichael moved that the bill take effect from passage.
On this question, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel and Cole (Mr. President)--33.
The nays were: None.
Absent: Yost--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 187) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 287, Providing posthumous high school diplomas.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel and Cole (Mr. President)--33.
The nays were: None.
Absent: Yost--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 287) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2002, Predicating actions for damages upon principles of comparative fault.
On third reading, coming up in regular order, with the unreported Judiciary committee amendment pending, and with the right having been granted on Friday, February 6, 2015, for further amendments to be received on third reading, was reported by the Clerk.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §55-7-13 and §55-7-24 of the Code of West Virginia, 1931, as amended, be repealed; and that said code be amended by adding thereto four new sections, designated §55-7-13a, §55-7-13b, §55-7-13c and §55-7-13d, all to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-13a. Modified comparative fault standard established.
(a) For purposes of this article, "comparative fault" means the degree to which the fault of a person was a proximate cause of an alleged personal injury or death or damage to property, expressed as a percentage. Fault shall be determined according to section thirteen-c of this article.
(b) In any action based on tort or any other legal theory seeking damages for personal injury, property damage, or wrongful death, recovery shall be predicated upon principles of comparative fault and the liability of each person, including plaintiffs, defendants and nonparties who proximately caused the damages, shall be allocated to each applicable person in direct proportion to that person's percentage of fault.
(c) The total of the percentages of comparative fault allocated by the trier of fact with respect to a particular incident or injury must equal either zero percent or one hundred percent.
§55-7-13b. Definitions.
As used in this article:
"Compensatory damages" means damages awarded to compensate a plaintiff for economic and noneconomic loss.
"Defendant" means, for purposes of determining an obligation to pay damages to another under this chapter, any person against whom a claim is asserted including a counter-claim defendant, cross-claim defendant or third-party defendant.
“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, strict product liability, absolute liability, liability under section two, article four, chapter twenty-three of this code or assumption of the risk.
"Plaintiff" means, for purposes of determining a right to recover under this chapter, any person asserting a claim.
§55-7-13c. Liability to be several; amount of judgment; allocation of fault.
(a) In any action for damages, the liability of each defendant for compensatory damages shall be several only and may not be joint. Each defendant shall be liable only for the amount of compensatory damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against each defendant for his or her share of that amount. However, joint liability may be imposed on two or more defendants who consciously conspire and deliberately pursue a common plan or design to commit a tortious act or omission. Any person held jointly liable under this section shall have a right of contribution from other defendants that acted in concert.
(b) To determine the amount of judgment to be entered against each defendant, the court, with regard to each defendant, shall multiply the total amount of compensatory damages recoverable by the plaintiff by the percentage of each defendant's fault and, subject to subsection (d) of this section, that amount shall be the maximum recoverable against that defendant.
(c) Any fault chargeable to the plaintiff shall not bar recovery by the plaintiff unless the plaintiff’s fault is equal to or greater than the combined fault of all other persons responsible for the total amount of damages, if any, to be awarded. If the plaintiff’s fault is less than the combined fault of all other persons, the plaintiff’s recovery shall be reduced in proportion to the plaintiff’s degree of fault.
(d) Notwithstanding subsection (b) of this section, if a plaintiff through good faith efforts is unable to collect from a liable defendant, the plaintiff may, not later than one year 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 found to be liable.
(1) Upon the filing of the 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 the uncollectible amount among the other parties found to be liable, including a plaintiff at fault, according to their percentages at fault: Provided, That the court may not reallocate to any defendant an uncollectible amount greater than that defendant's percentage of fault multiplied by the uncollectible amount: Provided, however, That there shall be no reallocation against a defendant whose percentage of fault is equal to or less than the plaintiff’s percentage of fault.
(2) If the motion is filed, the parties may conduct discovery on the issue of collectibility prior to a hearing on the motion.
(e) A party whose liability is reallocated under subsection (d) of this section is nonetheless subject to contribution and to any continuing liability to the plaintiff on the judgment.
(f) This section does not 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.
(g) The fault allocated under this section to an immune defendant or a defendant whose liability is limited by law may not be allocated to any other defendant.
(h) Notwithstanding any other provision of this section to the contrary, a defendant that commits one or more of the followings acts or omissions shall be jointly and severally liable:
(1) A defendant whose conduct constitutes driving a vehicle under the influence of alcohol, a controlled substance, or any other drug or any combination thereof, as described in section two, article five, chapter seventeen-c of this code, which is a proximate cause of the damages suffered by the plaintiff;
(2) A defendant whose acts or omissions constitute criminal conduct which is a proximate cause of the damages suffered by the plaintiff; or
(3) A defendant whose conduct constitutes an illegal disposal of hazardous waste, as described in section three, article eighteen, chapter twenty-two of this code, which conduct is a proximate cause of the damages suffered by the plaintiff.
(i) This section does not apply to the following statutes:
(1) Article twelve-a, chapter twenty-nine of this code;
(2) Chapter forty-six of this code; and
(3) Article seven-b, chapter fifty-five of this code.
§55-7-13d. Determination of fault; imputed fault; plaintiff’s involvement in felony criminal act; burden of proof; limitations; applicability; severability.
(a) Determination of fault of parties and nonparties.
(1) 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 the person was or could have been named as a party to the suit.
(2) Fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice no later than one hundred-eight days after service of process upon said defendant that a nonparty was wholly or partially at fault. Notice shall be filed with the court and served upon all parties to the action designating the nonparty and setting forth the nonparty’s name and last-known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault;
(3) 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 in proportion to the percentage of fault assigned to the settling party or nonparty.
(4) Nothing in this section is meant to eliminate or diminish any defenses or immunities, which exist as of the effective date of this section, except as expressly noted herein;
(5) 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 do not subject any nonparty to liability in that or any other action, or may not be introduced as evidence of liability or for any other purpose in any other action; and
(6) 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 this article. For this purpose, the court may determine that two or more persons are to be treated as a single person.
(b) Imputed fault. -- Nothing in this section may be construed as precluding a person from being held liable for the portion of comparative fault assessed against another person who was acting as an agent or servant of such person, or if the fault of the other person is otherwise imputed or attributed to such person by statute or common law. In any action where any party seeks to impute fault to another, the court shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, on the issue of imputed fault.
(c) Plaintiff’s involvement 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 if such damages arise out of the plaintiff’s commission, attempt to commit or fleeing from the commission of a felony criminal act.
(d) Burden of proof. -- The burden of alleging and proving comparative fault shall be upon the person who seeks to establish such fault.
(e) Limitations. -- Nothing in this section creates a cause of action. Nothing in this section alters, in any way, the immunity of any person as established by statute or common law.
(f) Applicability. -- This section applies to all causes of action arising or accruing on or after the effective date of its enactment.
(g) Severability. -- The provisions of this section are severable from one another, so that if any provision of this section is held void, the remaining provisions of this section shall remain valid.
On motion of Senator Romano, the following amendments to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 2002) were next reported by the Clerk and considered simultaneously:
On page four, section thirteen-d, subsection (a), subdivision (1), after the word “suit” by changing the period to a colon and inserting the following proviso: Provided, That any party or nonparty who enters into a settlement agreement for all claims against it prior to the entering of a verdict or the request for special interrogatories in subdivision (6) of this subsection may not be included on the verdict form or in the special interrogatories required by subdivision (6) of this subsection.;
On page four, section thirteen-d, subsection (a), subdivision (2), by striking out the words “if the plaintiff entered into a settlement agreement with the nonparty or”;
On page five, section thirteen-d, subsection (a), subdivision (2), after the words “partially at fault” by inserting the words “and if the plaintiff has not entered into a settlement agreement with the nonparty”;
On page five, section thirteen-d, subsection (a), subdivision (3), by striking out the words “in proportion to the percentage of fault assigned to the settling party or nonparty” and inserting in lieu thereof the words “by the amount of the nonparty or party’s settlement”;
On page five, section thirteen-d, subsection (a), subdivision (6), after the word “article” by changing the period to a colon and inserting the following proviso: Provided, That any party or nonparty who enters into a settlement agreement for all claims against it prior to the entering of a verdict or the request for special interrogatories may not be included on the verdict form or in the special interrogatories required by this subdivision.;
And,
On page six, section thirteen-d, subsection (b), after the words “imputed fault” by changing the period to a colon and inserting the following proviso: Provided, That any party or nonparty who enters into a settlement agreement for all claims against it prior to any findings or special interrogatories required by this subsection may not be included in the findings or special interrogatories.
Following discussion,
The question being on the adoption of Senator Romano’s amendments to the Judiciary committee amendment to the bill, the same was put and did not prevail.
The question now being on the adoption of the Judiciary committee amendment to the bill, the same was put and prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2002), as just amended by the Committee on the Judiciary, was then read a third time and put upon its passage.
Following discussion,
The question being “Shall Engrossed Committee Substitute for House Bill No. 2002 pass?”
On the passage of the bill, the yeas were: Blair, Boley, Boso, Carmichael, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Leonhardt, Maynard, Mullins, Nohe, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams and Cole (Mr. President)--24.
The nays were: Beach, Facemire, Kessler, Kirkendoll, Laird, Miller, Romano, Snyder and Woelfel--9.
Absent: Yost--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2002) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2002--A Bill to repeal §55-7-13 and §55-7-24 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto four new sections, designated §55-7-13a, §55-7-13b, §55-7-13c and §55-7-13d, all relating to predicating actions for damages upon principles of comparative fault; establishing the comparative fault standard; abolishing joint liability and implementing several liability; codifying the existing modified comparative fault standard related to a plaintiff’s level of fault and ability to recover; establishing a reallocation process for any uncollectible judgments; establishing how to consider the fault of nonparties; establishing how to consider the fault of, and the amounts paid by, settling parties; addressing liability of defendants when a plaintiff is injured related to commission of a felony criminal act; providing for the use of special interrogatories; clarifying fault may be imputed to another person who was acting as an agent or servant of another; providing for the burden of proof and limitations; excepting certain statutory sections related to liability from this bill’s application; and defining terms.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2217, Relating to qualifications of the Commissioner of Labor.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel and Cole (Mr. President)--30.
The nays were: Kessler, Romano and Snyder--3.
Absent: Yost--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2217) passed.
On motion of Senator Trump, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2217--A Bill to amend and reenact §21-1-2 of the Code of West Virginia, 1931, as amended, relating to the qualifications of the Commissioner of Labor; removing language that the commissioner be identified with the labor interests of the state and requiring that the commissioner be identified with and have knowledge and experience in employee issues and interests including employee-employer relations in this state; and removing language generally related to appointment and term of the Commissioner of Labor.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 37, Creating Revised Uniform Arbitration Act.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Palumbo, the following amendment to the bill was reported by the Clerk and adopted:
On page eleven, section eight, line eleven, after the word “enforceable” by changing the period to a colon and inserting the following proviso: Provided, That the decision as to whether the arbitration agreement is enforceable shall be made by a court of competent jurisdiction, if requested by any party to the arbitration or agreement, pursuant to section nine of this article.
On motion of Senator Facemire, the following amendment to the bill (Com. Sub. for S. B. No. 37) was next reported by the Clerk:
On page thirty-seven, section thirty, line two, by striking out the words “An order” and inserting in lieu thereof the words “A final order granting or”.
Following discussion,
The question being on the adoption of Senator Facemire’s amendment to the bill, and on this question, Senator Facemire demanded the yeas and nays.
The roll being taken, the yeas were: Beach, Facemire, Kessler, Kirkendoll, Laird, Miller, Palumbo, Plymale, Romano, Snyder, Stollings, Unger, Walters and Woelfel--14.
The nays were: Blair, Boley, Boso, Carmichael, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Leonhardt, Maynard, Mullins, Nohe, Prezioso, Sypolt, Takubo, Trump, Williams and Cole (Mr. President)--19.
Absent: Yost--1.
So, a majority of those present and voting not having voted in the affirmative, the President declared Senator Facemire’s amendment to the bill rejected.
The bill (Com. Sub. for S. B. No. 37), as amended by Senator Palumbo, was then ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 255, Eliminating certain boards, councils, committees, panels, task forces and commissions.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 262, Transferring CHIP and Children's Health Insurance Agency from Department of Administration to DHHR.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 267, Repealing code relating to Governor's Office of Health Enhancement and Lifestyle Planning.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 295, Establishing appeal process for DHHR Board of Review and Bureau for Medical Services decisions.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 357, Creating Coal Jobs and Safety Act of 2015.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Beach, and by unanimous consent, the bill was advanced to third reading with the right for amendments to be considered on that reading.
Com. Sub. for Senate Bill No. 361, Eliminating prevailing hourly wage requirement for construction of public improvements.
On second reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Carmichael, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for House Bill No. 2025, Prohibiting certain sex offenders from loitering within one thousand feet of a school or child care facility.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §61-8-29, to read as follows:
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-29. Criminal loitering by persons on supervised release.
(a) Any person serving a period of supervised release of ten years or more pursuant to the provision of section twenty-six, article twelve, chapter sixty-two of this code who loiters within one thousand feet of the property line of the residence or workplace of a victim of a sexually violent offense for which the person was convicted shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than thirty days.
(b) Any person serving a period of supervised release of ten years or more pursuant to the provisions of section twenty-six, article twelve, chapter sixty-two of this code for an offense where the victim was a minor who loiters within one thousand feet of the property line of a facility or business the principal purpose of which is the education, entertainment or care of minor children, playground, athletic facility or school bus stop shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not more than thirty days.
(c) A person does not violate the provisions of subsection (a) or (b) of this section unless he or she has previously been asked to leave the proscribed location by an authorized person and thereafter refuses to leave or leaves and thereafter returns to the proscribed location.
(d) As used in this section:
(1) “Authorized person” means:
(A) A law-enforcement officer acting in his or her official capacity;
(B) A security officer employed by a business or facility to protect persons or property acting in his or her employment capacity;
(C) An owner, manager or employee of a facility or business having a principal purpose the caring for, education or entertainment of minors;
(D) A victim or parent, guardian or lawful temporary or permanent custodian thereof;
(E) An employee of a county Board of Education acting in his or her employment capacity.
(2) “Facility or business, the principal purpose of which is the education, entertainment or care of minor children” means:
(A) A pre-school, primary, intermediate, middle or high school, either public or private;
(B) A childcare facility;
(C) A park;
(D) An athletic facility used by minors;
(E) A school bus stop.
(3) “Loitering” means to enter or remain on property while having no legitimate purpose or, if a legitimate purpose exists, remaining on that property beyond the time necessary to fulfill that purpose.
(e) Nothing in this section shall be construed to prohibit or limit a person’s presence within one thousand feet of a location or facility referenced in this section if the person is there present for the purposes of supervision, counseling or other activity in which the person is directed to participate as a condition of supervision or where the person has the express permission of his supervising officer to be present.
The bill (Eng. Com. Sub. for H. B. No. 2025), as amended, was then ordered to third reading.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Com. Sub. for Senate Bill No. 19, Specifying minimum early childhood education program instruction days.
Com. Sub. for Com. Sub. for Senate Bill No. 60, Requiring food handler examinations and cards.
Senate Bill No. 238, Exempting county boards of education from liability arising from unorganized recreation.
Com. Sub. for Senate Bill No. 242, Creating criminal penalties for certain automated telephone calls during state of emergency or preparedness.
Eng. House Bill No. 2138, Adding aircraft operations on private airstrips and farms to the definition of recreational purpose.
And,
Eng. Com. Sub. for House Bill No. 2227, Relating to the National Coal Heritage Area Authority.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Snyder, unanimous consent being granted, it was ordered that the Journal show had Senator Snyder been present in the chamber on Friday, February 6, 2015, he would have voted "yea" on the passage of Engrossed Senate Bill No. 250, Engrossed Committee Substitute for Senate Bill No. 261, Engrossed Committee Substitute for Senate Bill No. 374 and Engrossed Committee Substitute for Senate Bill No. 375.
On motion of Senator Carmichael, a leave of absence for the day was granted Senator Yost.
Pending announcement of meetings of standing committees of the Senate, including a majority party caucus,
On motion of Senator Carmichael, the Senate adjourned until tomorrow, Tuesday, February 10, 2015, at 11 a.m.
____________
Webmaster | © 2024 West Virginia Legislature **
