SENATE CONCURRENT RESOLUTION   22    

(By  Senators Azinger, Caputo, Chapman, Deeds, Hamilton, Hunt, Martin, Maynard, Rucker, Stover, Stuart, Swope, Takubo, Taylor, Weld, and Trump)

[Originating in the Committee on the Judiciary; reported on February 28, 2023 ]

Requesting the Joint Committee on the Judiciary study the need, or potential need, within the civil justice system for: (1) A mechanism for awarding a prevailing party attorney fees and costs in civil tort actions beyond that which is provided for by West Virginia Rules of Civil Procedure 11 and 68; and (2) potential abrogation of the collateral source rule to prevent a plaintiff from recovering damages in tort beyond that which would make him or her whole.  

Whereas, West Virginia currently adheres to the American rule whereby, absent a statutory provision to the contrary, each party generally bears the costs and expenses of civil litigation including attorney’s fees and costs; and

Whereas, The Legislature has been requested to consider the potential need for the incentivization of the settlement and resolution of civil disputes in advance of trial through the mandatory shifting of attorney’s fees and expenses; and

Whereas, West Virginia common law recognizes the collateral source rule which, in the context of payments for medical services and treatment, permits plaintiffs to recover the actual amount of their medical bills irrespective of what was actually paid by a health insurer on plaintiffs’ behalf; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on the Judiciary is hereby requested to study the potential incentivization of resolution of civil tort claims through mandatory fee and cost shifting and the potential abrogation of the collateral source rule in the context of payments to plaintiffs for medical services and treatment, including, but not limited to, the amount or degree by which premiums paid by West Virginians for automobile liability insurance and other liability insurance policies would be reduced by adoption of a statutory change in the way plaintiffs in civil tort cases are permitted to recover medical expenses in those cases; and, be it

Further Resolved, that the Joint Committee on the Judiciary report to the regular session of the Legislature, 2024, on its findings, conclusions, and recommendations, together with drafts of any legislation necessary to effectuate its recommendation; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report, and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.