SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home
Introduced Version Senate Bill 699 History

   |  Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 699

(By Senators Caruth and McCabe)

____________

[Introduced March 23, 2009; referred to the Committee on the Judiciary.]

____________




A BILL to amend and reenact §55-7-24 of the Code of West Virginia, 1931, as amended, relating to properly apportioning the percentage of fault to all defendants whose tortious conduct caused an incident, injury or damages at issue in a case.

Be it enacted by the Legislature of West Virginia:

That §55-7-24 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 7. ACTIONS FOR INJURIES.

§55-7-24. Apportionment of damages.

(a) In any cause of action involving the tortious conduct of more than one defendant party, 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 plaintiff or plaintiffs who remain parties at the time the verdict is rendered and the proportionate fault of each of the parties in the litigation at the time the verdict is rendered defendant whose
tortious conduct contributed to causing the incident, injuries, or damages notwithstanding whether any such defendant or defendants have previously settled the claims with such plaintiff or plaintiffs. However, any such defendant who has previously made a good-faith settlement with the plaintiff or plaintiffs will not be required to pay any amount assessed under the rules of joint and several liability as such defendants inclusion in the assessment required by subdivisions (1) and (2) of this section are simply for the purpose of determining the negligence which is attributable to any party that has not settled with the plaintiff or plaintiffs; and
(2) Enter judgment against each defendant found to be liable negligent on the basis of the rules of joint and several liability, except that if any defendant is thirty 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) Notwithstanding subdivision (2), subsection (a) of this section, the rules of joint and several liability shall apply to: (1) Any party who acted with the intention of inflicting injury or damage;

(2) Any party who acted in concert with another person as part of a common plan or design resulting in harm;

(3) Any party who negligently or willfully caused the unlawful emission, disposal or spillage of a toxic or hazardous substance; or

(4) Any party strictly liable for the manufacture and sale of a defective product.

(c) Notwithstanding subdivision (2), subsection (a) of this section, if a claimant plaintiff or plaintiffs through good faith efforts is unable to collect from a liable defendant, the claimant plaintiff or plaintiffs may, not later than six months 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 in the litigation at the time the verdict is rendered. The motion shall include the following:

(1) Upon the filing of such a 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 such uncollectible amount among the other parties in the litigation at the time the verdict is rendered, including a claimant plaintiff or plaintiffs at fault according to their percentages of fault. Provided, That However, the court shall not reallocate to any defendant an uncollectible amount greater than that defendant's percentage of fault multiplied by such uncollectible amount.

(2) If such a motion is filed, the parties may conduct discovery on the issue of collectability prior to a hearing on such motion.

(3) Any order regarding such motion shall be entered within one hundred twenty days after the date of filing such a motion.

(4) A defendant's share of the obligation to a claimant plaintiff or plaintiffs may not be increased by reason of reallocation under this subsection if:

(A) The percentage of fault of that defendant is equal to or less than the claimant's plaintiff or plaintiff's percentage of fault; or

(B) The percentage of fault of that defendant is less than ten percent.

(5) A party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant plaintiff or plaintiffs on the judgment.

(6) If any defendant's share of the obligation to a claimant plaintiff or plaintiffs is not increased by reason of the application of subdivision (4) of this subsection, the amount of that defendant's share of the reallocation shall be considered uncollectible and shall be reallocated among all other parties who are not subject to subdivision (4) of this subsection, including the claimant plaintiff or plaintiffs, in the same manner as otherwise provided this subsection.

(d) Nothing in this section may 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 may 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 of this chapter.

(g) This section applies only to causes of action that accrue on or after July 1, 2005.




NOTE: This bill shall properly apportion the percentage of fault to all defendants whose tortious conduct caused an incident, injury or damages at issue in a case.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Email WebmasterWebmaster   |   © 2024 West Virginia Legislature **


X

Print On Demand

Name:
Email:
Phone:

Print