H. B. 4096
(By Delegates Amores, Craig, Mahan and Armstead)
[Introduced January 24, 2006; referred to the Committee
on the Judiciary.
]
A BILL to amend and reenact §
58-5-14 of the Code of West Virginia,
1931, as amended, relating to amount of an appeal bond.
Be it enacted by the Legislature of West Virginia:
That
§
58-5-14 of
the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-14. Appeal bond generally; limitation on amount.
(a) When required by the court, an appeal shall not take
effect until bond is given by the appellants or petitioners, or one
of them, or some other person, in a penalty to be fixed by the
court or judge by or in which the appeal is allowed or entered with
condition: If a supersedeas be awarded, to abide by and perform
the judgment and to pay to the opposite party, and to any person
injured all such costs and damages as they, or either of them, may incur or sustain by reason of said appeal, in case such judgment,
or such part, be affirmed, or the appeal be dismissed, and also, to
pay all damages, costs and fees, which may be awarded against or
incurred by the appellant or petitioners; and if it is an appeal
from a judgment dissolving an injunction, or dismissing a bill of
injunction, with a further condition, to indemnify and save
harmless the surety in the injunction bond against loss or damage
in consequence of his suretyship; and with condition when no
supersedeas is awarded to pay such specific damages, and such costs
and fees as may be awarded or incurred: Provided, That whenever an
appeal is awarded in any action or suit wherein a judgment for the
payment of money has been entered against an insured in an action
which is defended by an insurance corporation, or other insurer, on
behalf of the insured under a policy of insurance, the limit of
liability of which is less than the amount of said judgment,
execution on the judgment to the extent of the policy coverage
shall be stayed until final determination of such appeal,
and no
execution shall be issued, or action brought, maintained or
continued against such insured, insurance corporation, or other
insurer, for the amount of such judgment so stayed, by either the
injured party, the insured, or the legal representative, heir or
assigns of any of them, during the pendency of such proceeding,
provided such insurance corporation, or other insurer, shall:
(1) File with the clerk of the court in which the judgment was entered, a sworn statement of one of its officers, describing the
nature of the policy and the amount of coverage thereof;
(2) Give or cause to be given by the judgment debtor or some
other person for him a bond in a penalty to be fixed by the court
or judge by or in which the appeal is allowed or entered, not to
exceed the amount of such insurance coverage set out in the sworn
statement above required, with condition to pay the amount of such
coverage upon said judgment if the judgment or such part is
affirmed or the appeal is dismissed, plus interest on said sum and
cost;
(3) Serve a copy of such sworn statement and bond upon the
judgment creditor or his attorney;
(4) Deliver or mail to the insured at the latest address of
the insured appealing upon the records of such insurance
corporation, or other insurer, written notice that execution on
such judgment to the extent that it is not covered by such
insurance is not stayed in respect to the insured: Provided, That
the filing of a bond by the insured or someone for him, conditioned
upon the payment of the balance of the judgment and interest not
stayed by the insured as aforesaid if the judgment is affirmed or
the appeal is dismissed, shall stay execution on the balance of
said judgment not covered by such insurance: Provided, however,
That the filing of such statement and bond hereunder by an
insurance corporation or other insurer shall not thereby make such insurance corporation or other insurer a party to such action,
either in the trial court or in the appellate court.
(b) Except for bonds required under §
4-11A-4 of this code, an
appeal bond required by a court in accordance with this Code may
not exceed twenty five million dollars for compensatory damages and
all other portions of a judgement other than punitive damages and
twenty-five million dollars for punitive damages unless the
appellee proves by a preponderance of the evidence that the
appellant or appellants are purposefully dissipating or diverting
assets outside of the ordinary course of its business to the effect
that the ability to pay the ultimate judgement is impaired. For
purposes of this section, multiple judgements resulting from cases
that have been consolidated or aggregated for purposes of trial
proceedings shall be treated as single judgement. At the election
of the judgement debtor, the bond shall not exceed the lesser
amount of fifty percent of the judgement debtor's net worth or
twenty-five million dollars. In no event shall any party be
required to post a bond in an amount exceeding the amount of the
actual judgement, plus accrued interest and costs.
(c) If the appellee proves by a preponderance of the evidence
that the party for whom the appeal bond has been limited is
purposefully dissipating or diverting assets outside of the
ordinary course of business for the purpose of avoiding ultimate
payment of the judgement, the court shall not be bound by the limitations stated in subsection (b), and may set the appeal bond
at any amount not to exceed the amount of the actual judgment, plus
accrued interest and costs.
(d) Any party appealing to protect the estate of a decedent or
person under disability, or to protect the interest of the State or
any county or municipality of the State, shall not be required to
post an appeal bond.
NOTE: The purpose of this bill is to limit the amount of a
bond on appeal of a civil matter to $25 million unless an appellant
is purposefully dissipating of diverting assets so that the ability
to pay the ultimate judgement is impaired.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.