Senate Bill No. 173
(By Senators Tomblin (Mr. President) and Buckalew
By Request of the Executive)
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[Introduced January 19, 1998; referred to the Committee
on the Judiciary.]
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A BILL to amend the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new
chapter, designated chapter fifty-five-a, relating to
establishing an injured consumers legal bill of rights;
reforming the civil justice system; providing that chapter
is not applicable to certain actions; stating legislative
findings and declarations of purposes; defining terms used
in chapter; restricting contact by attorneys and insurers
with potential claimants; authorizing claimants to elect fee
arrangement with attorneys; establishing right of claimants
to receive written statement of fees and estimated expenses;
establishing a public policy suggested maximum contingency
fee schedule; providing a right of cancellation of
contingency fee agreement; providing a contingency fee
information fact sheet; prohibiting disclosure of names of claimants receiving periodic payments to persons interested
in converting payments to a lump sum; establishing criminal
penalties; regarding the recovery of punitive damages;
establishing what a plaintiff must prove and the trier of
fact must find before the trier of fact may award punitive
damages; stating circumstances when punitive damages may not
be awarded and a defendant may not be held liable for
punitive damages; providing the amount of punitive damages
that may be awarded against large employers and the amount
that may be awarded against all others; providing maximum
amounts which may be awarded on multiple punitive damage
awards for the same course of conduct; providing for the
bifurcation of a civil action in which punitive damages are
sought when requested by a defendant; providing for the
allocation of punitive damage awards among the public, the
plaintiff and the plaintiff's attorneys; stating the
conditions under which punitive damages may be assessed
against a principal or employer for an act of an agent or
employee and against an association, limited liability
entity or partnership for the acts of a member or partner;
predicating actions for damages upon principles of
comparative fault; establishing the comparative fault
standard; abolishing joint liability; describing how to
consider the fault of nonparties; describing how to consider the fault of, and the amounts paid by, settling parties;
providing for the use of special interrogatories; allowing
the assessment of a percentage of fault for failing to take
reasonable precautionary measures that are available;
precluding recovery by a plaintiff injured while involved in
a felony criminal act; precluding the allocation of fault to
a person such as a seller, distributor or installer on a
strict product liability theory where that person did not
contribute to the alleged defect; providing for the burden
of proof and limitations; reducing damage awards by
collateral source payments; providing how such reductions
shall be determined; stating the effects of such
determinations upon the trial; providing for a statute of
repose; providing maximum amounts that may be recovered for
noneconomic losses; providing for repeal of conflicting
laws; applicability of the Injured Consumers Bill of Rights
and Civil Justice Reform Act of 1998; and a severability
clause.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new
chapter, designated chapter fifty-five-a, to read as follows:
CHAPTER 55A. INJURED CONSUMERS BILL OF RIGHTS
AND CIVIL JUSTICE REFORM.
ARTICLE 1. GENERAL PROVISIONS.
§55A-1-1. Short title.
This chapter shall be known and may be cited as the "Injured
Consumers' Bill of Rights and Civil Justice Reform Act of 1998."
§55A-1-2. Chapter not applicable to certain actions.
Except with respect to article two of this chapter, this
chapter is not applicable to:
(a) Those causes of action where a defendant's 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 and is the proximate cause of the
damages suffered by the plaintiff;
(b) Those causes of action where a defendant's actions
constitute criminal conduct which is the proximate cause of the
damages suffered by the plaintiff;
(c) Those causes of action where a defendant's conduct
constitutes an illegal disposal of hazardous waste, as described
in section three, article eighteen, chapter twenty-two of this
code and is the proximate cause of the damages suffered by the
plaintiff.
§55A-1-3. Legislative findings and declaration of purposes.
(a) The Legislature finds that: (1) The contingency fee system is an important part of the state's civil justice system,
as it provides access to courts for people of low or moderate
incomes, but it may be unfair to many of those it is supposed to
serve, as it costs some claimants far too much in fees, leaves
some with no representation for valid claims, and results in
excess costs being passed on to the public; (2) ordinary people
who suffer serious injuries are often not sophisticated consumers
of legal services and generally lack the information needed to
make a reasonable choice about an attorney; (3) promotional
advertisements by personal injury lawyers do not always
adequately inform potential clients of the basics about a
contingent fee, and uninformed injured consumers may sign
agreements that have hidden expenses they must pay regardless of
whether they win or lose; (4) injured consumers and their
families may sign a contingent fee agreement before they can make
a rational decision, and especially where there has been a mass
disaster or an unexpected traumatic loss, there is generally no
"cooling off" period after the tragedy, so that agents may take
unfair advantage by pressuring vulnerable, uninformed victims to
retain them for extravagant fees; (5) there does not appear to be
adequate competition with respect to contingency fees, and
instead, a standard fee of one-third or more of any recovery
received plus expenses appears to be the norm, even though the
contingency of tort liability suits has dropped markedly over the past three decades due to changes in law and practice.
(b) The Legislature also finds and declares that the civil
liability law of the state should be reformed in order to curtail
or eliminate clear social and economic problems associated with:
(1) A common law that allows excessive awards for punitive
damages and excessive awards for noneconomic losses; (2) a common
law that allows punitive damages to be awarded pursuant to vague,
subjective, elastic, and often retrospective standards of
liability; (3) a common law that is essentially standardless in
determining the amount of punitive damages and noneconomic losses
that may be assessed; (4) a common law that tolerates excessive,
arbitrary, and unpredictable punitive and noneconomic loss damage
awards; (5) a common law that is fundamentally unfair in allowing
multiple or repeated punishment through punitive damage awards
for what is essentially the same conduct (which may endanger the
ability of future claimants to receive compensation for actual
economic and noneconomic losses); (6) a common law that allows a
plaintiff a windfall from punitive damage awards, which have as
their object the punishment of the defendant for certain non- criminal misconduct and the deterrence of the defendant and
others from like conduct in the future; (7) a common law that
denies to the public any share of damages awarded to punish and
deter; (8) a common law that is unjust and unfair in making one
defendant jointly liable for the total damages assessed against multiple defendants even though that one defendant may have been
at fault as little as one percent of the total fault, which
proximately caused the plaintiff's injuries; (9) a common law
which, in imposing joint liability, often causes municipalities,
volunteer groups, nonprofit organizations, property owners, and
large and small businesses to be brought into litigation despite
the fact that their conduct had little or nothing to do with the
accident or transaction giving rise to the lawsuit; (10) a common
law that permits a seller or distributor of a product to be held
liable for a defect in its design or manufacture even though the
seller or distributor did not cause or contribute to the defect;
(11) a common law that denies any reduction in damage awards for
compensatory payments received from collateral sources, such as
workers' compensation and employer disability programs; and (12)
a common law which allows lawsuits to be brought for a claimed
defective product made twenty, thirty, or more years ago.
(c) The Legislature further finds and declares that the
foregoing civil liability law of the state as made or interpreted
by the courts, rather than having been enacted by the
Legislature, has resulted, or may result, in excessive,
unpredictable, and often arbitrary damage awards and unfair
allocations of liability that: (1) Adversely affect the ability
of the state to retain jobs and attract new employers; (2) cause
the withdrawal of products, producers, services, and service providers from the marketplace and result in excessive liability
costs that are passed on to consumers through higher prices; (3)
cause defendants, including boards of education and other
governmental agencies, to settle cases out of fear of large
verdicts rendered pursuant to the civil liability laws and in
order to avoid the high costs, inconvenience, and uncertainty of
litigation; (4) jeopardize the financial well-being and security
of many individuals, small businesses, and even entire
industries, and adversely affect government and taxpayers; (5)
undermine the ability of companies in West Virginia to compete
nationally and internationally, and decrease the number of jobs
and the amount of production capital in the state's economy; (6)
cause citizens and small businesses to live in fear of lawsuits
against them wherein they may be bankrupted or driven out of
business by legal fees and expenses in defending themselves and
by exorbitant settlements extracted by threat of trials that have
taken on the characteristics of a lottery; and (7) add to the
high cost of liability insurance, making it difficult for
individuals, producers, consumers, volunteers, and nonprofit
organizations to protect themselves with any degree of confidence
at a reasonable cost.
(d) The purpose of this act, therefore, is to provide an
"Injured Consumers Bill of Legal Rights and Civil Justice Reform
Act of 1998" to restore rationality, certainty and fairness to the civil justice system in order to correct the clear social and
economic problems associated with our current system, and to
identify basic rights for every injured person in the state who
may need the services of a personal injury attorney and to
promote the free flow of information between injured consumers
and the attorneys who represent them.
§55A-1-4. Definitions.
As used in this chapter:
(a) "Actual malice" means specific intent to cause the
personal injury, death, or damage to property complained of by
the plaintiff.
(b) "Attorney" means any natural person, professional law
association, corporation, or partnership authorized to practice
law.
(c) "Attorney's services" means the professional advice or
counseling of or representation by an attorney, but does not
include other assistance incurred, directly or indirectly, in
connection with an attorney's services, such as administrative or
secretarial assistance, overhead, travel expenses, witness fees,
or preparation by a person other than the attorney of any study,
analysis, report, or test.
(d) "Claimant" means any natural person who brings a
personal injury claim and, if such a claim is brought on behalf
of the claimant's estate, the term shall include the claimant's parent, guardian, or personal representative. The term does not
include an artificial organization or legal entity, such as a
firm, corporation, association, company, partnership, society,
joint venture, or governmental body.
(e) "Collateral source" means: (1) The United States Social
Security Act, as amended; (2) any state or federal disability,
workers' compensation, or other act designed to provide income
replacement, medical, or other benefits; (3) any accident, health
or sickness, income or wage replacement insurance, income
disability insurance, casualty or property insurance (including
automobile and homeowners' insurance), or any other insurance
except life insurance; (4) any contract or agreement of any
group, organization, partnership, or corporation to provide, pay
for, or reimburse the cost of medical, hospital, dental, or other
health care services or provide similar benefits; or (5) any
contractual or voluntary wage continuation plan provided by an
employer or otherwise, or any other system intended to provide
wages during a period of disability.
(f) "Collateral source payments" means money paid or payable
by collateral sources for losses or expenses, including, but not
limited to, property damage, wage loss, medical costs,
rehabilitation costs, services, and other costs incurred by or on
behalf of a plaintiff for which that plaintiff is claiming
recovery through a tort action commenced in any of the courts in this state.
(g) "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 of the
total fault as caused by the injury.
(h) "Compensatory damages" means money awarded to compensate
a plaintiff for economic and noneconomic loss.
(i) "Conscious, reckless, and outrageous indifference to the
health, safety, and welfare of others" means an act or omission
which when viewed objectively from the standpoint of the
defendant at the time of its occurrence involves an extreme
degree of risk, considering the probability and magnitude of the
potential harm to others, and of which the defendant has actual,
subjective awareness of the risk involved, but nevertheless
proceeds with conscious disregard of the rights, safety, or
welfare of others.
(j) "Contingent fee" or "contingency fee" means the cost or
price of any attorney's services determined by applying a
specified percentage, which may be a firm fixed percentage, a
graduated or sliding percentage, or any combination thereof, to
the amount of the settlement or judgment obtained in a personal
injury claim.
(k) "Damage" or "damages" means pain, suffering,
inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of enjoyment of life, loss of
society and companionship, loss of consortium, injury to
reputation, humiliation, loss of earnings and earning capacity,
loss of income, medical expenses and medical care, rehabilitation
services, custodial care, wrongful death, burial costs, loss of
use of property, costs of repair or replacement of property,
costs of obtaining substitute domestic services, loss of
employment, loss of business or employment opportunities, lost
profits, and such other losses to the extent that recovery for
such is allowable under any present, applicable state law. It
does not include punitive damages.
(l) "Defendant" means, for purposes of determining an
obligation to pay money to another under this chapter, any person
against whom a claim is asserted by a plaintiff.
(m) "Economic loss" means objectively verifiable monetary
losses, such as medical expenses, loss of earnings and earning
capacity, cost of replacement services, loss of income stream due
to death, burial costs, loss of business or employment
opportunities, lost profits, and loss due to property destruction
or damage, to the extent recovery for any such monetary loss is
allowed under any present applicable state law.
(n) "Employer" includes, but is not limited to, a parent,
subsidiary, affiliate, division, or department of the employer.
If the employer is an individual, the individual shall be considered an employer under this chapter only if the subject of
the civil action is related to the individual's capacity as an
employer.
(o) "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, medical professional
liability, strict product liability, absolute liability,
liability under section two, article four, chapter twenty-three
of this code, or assumption of the risk.
(p) "Hourly fee" means the cost or price per hour of an
attorney's services.
(q) "Initial meeting" means the first conference or
discussion between the claimant and the attorney, whether by
telephone or in person, of the details, facts, or basis of a
personal injury claim.
(r) "Large employer" means an employer who employs more than
twenty-five persons on a full-time permanent basis, or its
equivalent, or has annual revenues of more than five million
dollars.
(s) "Noneconomic loss" means subjective, nonmonetary losses,
such as pain, suffering, inconvenience, mental anguish, emotional
distress, loss of enjoyment of life, loss of society and
companionship, loss of consortium, injury to reputation, and humiliation, to the extent recovery for any such nonmonetary loss
is allowed under any present, applicable state law.
(t) "Person" means any individual, corporation, company,
association, firm, partnership, society, joint stock company, or
other entity, including any governmental entity or unincorporated
association.
(u) "Personal injury claim" means:
(1) Any assertion of a right to payment, whether or not such
right is disputed or undisputed, excluding a right to payment
under a federal or state workers' compensation law; or
(2) Any civil action regardless of the legal theory on which
it is based, for physical illness, injury or death, caused to a
natural person, including mental anguish, emotional harm, damage
to reputation or character, and loss of consortium caused to that
person or caused to another as a result of that person's physical
illness, injury or death.
(v) "Plaintiff" means, for purposes of determining a right
to recover under this chapter, any person asserting a claim.
(w) "Product" means any object, substance, mixture, or raw
material in a gaseous, liquid, or solid state (1) which is
capable of delivery itself or as an assembled whole, in a mixed
or combined state, or as a component part or ingredient; (2)
which is produced for introduction into trade or commerce; (3)
which has intrinsic economic value; and (4) which is intended for sale or lease for commercial or personal use. The term "product"
does not include: (1) Human tissue, human organs, human blood,
and human blood products; (2) electricity, water delivered by a
utility, natural gas, or steam; or (3) intellectual property,
including computer software.
(x) "Product liability action" means a civil action brought
against any defendant, including defendants who did not
manufacture or sell a product, on any theory for damage caused by
a product.
(y) "Retain" means the act of a claimant in engaging an
attorney's services, whether by express agreement or impliedly by
seeking and obtaining the attorney's services.
ARTICLE 2. INJURED CONSUMERS LEGAL BILL OF RIGHTS.
§55A-2-1. Restriction on contact with potential claimant.
(a) No attorney, or an attorney's representative, may
contact any potential claimant or the claimant's family or
representative, directly or indirectly, within seven days of an
event which may give rise to a claim, for the purpose of securing
the claimant as a client for legal services in connection with
such claim. If such contact has been made, any agreement between
the attorney and the claimant is voidable by the claimant at any
time within two years after the final adjudication of such claim,
and the claimant shall not be liable to the attorney for any compensation or expenses involved in pursuing the claim. This
provision does not apply to any such contacts made by an attorney
purely on a preexisting personal, family or attorney/client
relationship, nor does it prohibit a claimant from contacting and
retaining an attorney during such period.
(b) No insurer, or an insurer's representative, may make a
final offer of settlement with any potential claimant or the
claimant's family or representative, directly or indirectly,
within seven days of an event which may give rise to a claim. If
such an offer has been made, any agreement between the insurer
and the claimant pursuant thereto is voidable by the claimant at
any time within two years thereafter. This provision does not
apply to other contacts made by the insurer for purposes such as
for the payment of the claimant's expenses or other reasonable
assistance to the claimant.
§55A-2-2. Election of fee arrangement; right of claimant to
receive written statement of fees and estimated expenses; public policy suggested maximum fee schedule; right of cancellation; contingency fee information fact sheet.
(a) A claimant who retains an attorney in connection with a
personal injury claim shall have the right to elect whether to
compensate the attorney for services in connection with that personal injury claim on an hourly basis or on a contingent fee
basis.
(b) An attorney retained by a claimant in connection with a
personal injury claim shall, at the initial meeting, disclose to
the claimant the claimant's right to elect the method of
compensating the attorney for his or her services.
(c) An attorney retained by a claimant in connection with a
personal injury claim shall, before signing a contract to
represent the claimant, disclose in a written statement to the
claimant:
(1) The attorney's hourly fee for services in the personal
injury claim and any conditions, limitations, restrictions, or
other qualifications on that fee the attorney deems appropriate;
(2) The attorney's contingent fee for services in the
personal injury claim and any conditions, limitations,
restrictions, or other qualifications on that fee the attorney
deems appropriate;
(3) A reasonable estimate of the amount of any costs or
expenses that the client must bear; and
(4) All other fee agreements to be made concerning the case,
including the amount to be paid to any cocounsel associated with
the case.
(d) An attorney who contracts to represent a claimant in
accordance with this article shall, at the time the contract is entered into, provide a duplicate copy of the contract, signed by
both the attorney and the claimant (or his or her guardian or
representative), to the claimant (or his or her guardian or
representative).
(e) The Legislature hereby adopts the schedule of maximum
contingency fees as contained on the "fee information fact sheet"
referred to in this section as the appropriate maximum fees based
on sound public policy, but does not mandate such fees, allowing
claimants and attorneys to agree to a fee in the open
marketplace.
(f) Any agreement for the payment of legal services on a
contingency fee basis may be canceled in its entirety by the
claimant within three days, excluding weekends, after the date on
which the contract was signed, and the claimant shall not be
assessed any penalty or costs by the attorney for effecting such
cancellation.
(g) If the agreement between the attorney and the claimant
involves a contingency fee, the attorney shall complete the "fee
information fact sheet" below and incorporate it into the
contract:
FEE INFORMATION FACT SHEET -- PLEASE READ CAREFULLY
West Virginia law requires all claimants in personal injury
cases entering into an agreement with an attorney to provide
legal services on a contingency fee basis to be provided with
this Fee Information Fact Sheet. A contingency fee is an
arrangement by which a claimant pays the attorney a percentage of the amount awarded for the claimant's injury.
This can result in
a very substantial fee, and you should consider it very
carefully. The law allows you three (3) days, excluding
weekends, in which to cancel this Agreement, and
you are
encouraged to seek proposals from at least two attorneys and
compare them. The most important factors, in addition to the
reputation and ability of the attorneys, are the percentages of
the
contingency fees and the expenses you will be charged. You
should ask the attorney about the expenses, including whether you
will be required to pay for some of them before a final award,
and whether you will be required to pay some if your claim is
unsuccessful.
PORTION OF AWARD
|
|
SUGGESTED MAXIMUM FEE
|
ATTORNEY'S FEE
|
On first $200,000
|
|
30 to 35 percent
|
___ percent
|
On amount between
$200,000 and
$500,000
|
|
25 to 30 percent
|
___ percent
|
On amount over
$500,000
|
|
15 to 25 percent
|
___ percent
|
TOTAL ESTIMATED EXPENSES$____________
(includes charges, court costs, expert and stenographer fees,
etc.)
Expenses will be deducted from (check one):
_____ your portion of the award
_____ the attorney's portion of the award
Itemized Charges:
Photocopies:$ ___ a pageTravel Meal Allotment: $ ____ a
day
Faxes:$ ___ a pageTravel Hotel Allotment: $ ____ a
day
Mileage:$ ___ a mileOther:_______________________
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
RIGHT OF CANCELLATION
You have three (3) days, excluding weekends, from the date
of this Agreement to cancel it by signing the statement below and
returning it to the attorney. (You should make a photocopy for your own safekeeping)
I WISH TO CANCEL THE AGREEMENT WITH _________________ [NAME
OF ATTORNEY] THAT I SIGNED ON _____________ [DATE YOU SIGNED
CONTRACT]
YOUR SIGNATURE ______________DATE OF CANCELLATION ____________
(h) An attorney retained by a claimant in connection with a
personal injury claim shall, within a reasonable time not later
than thirty days after the personal injury claim is finally
settled or adjudicated, disclose in a written statement to the
claimant:
(1) The total amount of the hourly fees or total contingent
fee for the attorney's services in connection with the personal
injury claim; and
(2) The actual fee per hour of the attorney's services in
connection with the personal injury claim, determined by dividing
the total amount of the hourly fees or the total contingent fee
by the actual number of hours of the attorney's services.
(i) In cases involving a contingency fee in excess of the
"suggested maximum fee" as contained in the "contingency fee
information fact sheet" provided for under this article, or where
the actual expenses exceeded the estimated expenses on such "fact
sheet" by more than twenty-five percent, the claimant may request
an objective review of the fee and expenses by a court or a bar
association committee to assure that they are reasonable and fair
in the circumstances, based on such factors as whether liability was contested, whether the amount of damages was clear, and how
much actual time the lawyer would have reasonably spent on the
case.
(j) The provisions of this section shall be in addition to
and not in lieu of any other available remedies or penalties.
§55A-2-3. Prohibition on disclosure of names of claimants
receiving periodic payments; penalty.
An attorney who has information relating to periodic
payments awarded to a claimant shall not divulge the name of the
claimant, the amount of the award or any other relevant
information to any person known to the attorney to be interested
in converting such periodic payments to a lump sum. Any person
who violates this provision shall be guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than five
thousand dollars nor more than ten thousand dollars.
ARTICLE 3. PUNITIVE DAMAGES.
§55A-3-1. General rule.
Punitive damages may be awarded in a civil action against a
defendant only if the plaintiff establishes by clear and
convincing evidence that the damages suffered were the result of
conduct that was carried out by the defendant with actual malice
toward the plaintiff or a conscious, reckless, and outrageous
indifference to the health, safety, and welfare of others. A defendant may not be held liable for punitive damages unless the
trier of fact finds that its award of compensatory damages alone
is not sufficient to punish the defendant for the conduct and to
deter the defendant from like conduct in the future.
§55A-3-2. Proportional awards.
The amount of punitive damages that may be awarded for a
claim in a civil action shall not exceed the greater of three
times the amount of compensatory damages or one million dollars
where the punitive damages are recoverable from large employers.
The amount of punitive damages that may be awarded for a claim in
a civil action shall not exceed the lesser of three times
compensatory damages or one hundred thousand dollars where the
punitive damages are recoverable from a defendant which is not a
large employer. The provisions of this section shall be applied
by the trial court and shall not be disclosed to the jury. If a
jury returns a verdict for punitive damages against the defendant
in excess of the amounts permitted herein, the trial court shall
reduce the award so that it will not exceed the applicable amount
set forth in this section.
§55A-3-3. Multiple awards.
If a jury returns a verdict of punitive damages against a
defendant in any case and if the total amount of any prior
punitive damage awards obtained by the same or other plaintiffs
in any state or federal court against that defendant for the same conduct that forms the basis of its award exceeds the applicable
amount set forth in section two of this article, then no
additional punitive damages may be awarded against that defendant
in any case. If the total amount of any such prior punitive
damage awards is less than the applicable amount set forth in
section two of this article, then the amount of any punitive
damages awarded in any subsequent case shall be reduced so that
the combined total amount of punitive damages awarded in all
cases combined attributable to such conduct shall not exceed the
applicable amount set forth in section two of this article. This
provision shall be applied by the trial court and shall not be
disclosed to the jury.
§55A-3-4. Bifurcation.
In a civil action in which punitive damages are sought, the
court shall bifurcate the trial of the action if requested by a
defendant. In the first stage of a bifurcated trial, the trier
of fact shall determine liability for compensatory damages, and
the amount of compensatory damages. If the trier of fact
determines during the first stage of a bifurcated trial that a
defendant is liable for compensatory damages, then the court
shall determine whether the evidence was sufficient to permit the
jury to consider punitive damages. If determined sufficient,
that same trier of fact shall determine, in a second stage of the
trial, whether the defendant is liable for punitive damages and, if applicable, the amount of punitive damages that should be
awarded. If a bifurcated proceeding is requested, evidence
relevant only to the claim of punitive damages shall be
inadmissible in the first stage of the trial.
§55A-3-5. Sharing of punitive damage awards.
Because the object of a punitive damage award is to punish
the defendant for certain conduct and to deter the defendant and
others from engaging in such conduct in the future, the entire
award should not be a windfall to the plaintiff or his attorney
but should be shared by the public. The public's share of each
such award shall be payable to the state of West Virginia to be
distributed in seven equal shares to the crime victims'
compensation fund established by the provisions of article two-a,
chapter fourteen of this code, the fire protection fund described
in section thirty-three, article three, chapter thirty-three of
this code, for the benefit of volunteer and part volunteer fire
departments established by the provisions of article fifteen,
chapter eight of this code, the senior center and other senior
programs and senior care services recognized or established by
the provisions of article five (p), chapter sixteen of this code,
the breast and cervical cancer diagnostic and treatment fund
established by the provisions of section seven, article
thirty-three, chapter sixteen of this code, family protection
shelters and other domestic violence and child abuse programs and funds established by the provisions of article two-c, chapter
forty-eight of this code, and the drunk driver prevention fund
established by the provisions of section sixteen, article
fifteen, chapter eleven of this code.
The public's share of each punitive damage award shall be
seventy-five percent thereof after the deduction of reasonable
expenses, other than attorney's fees, that are directly related
to the obtaining of the punitive damage award. The state shall
have no interest in or right to intervene at any stage of any
judicial proceeding involving a claim for punitive damages. In
the event the full amount of punitive damages awarded cannot be
collected, the public, the plaintiff, and the plaintiff's
attorneys if sharing therein, shall each be entitled to a
proportional share of the punitive damages collected. The fact
that a share of each punitive damage award is to be paid to the
state for the public shall not be made known to, or considered
by, the trier of fact in determining the amount of a punitive
damage award.
The plaintiff's attorney's share of a punitive damage award
shall be no more than ten percent of the plaintiff's share of a
punitive damage award as approved by the court after the
deduction of reasonable expenses, other than attorney's fees,
that are directly related to the obtaining of the punitive damage
award.
§55A-3-6. Complicity rule.
A principal or employer who is a natural person may be
liable for punitive damages as a result of conduct of his/her
agent or employee only when the plaintiff proves by clear and
convincing evidence that the damages suffered were the result of
conduct that was carried out by such principal or employer with
actual malice toward the plaintiff or with a conscious, reckless
and outrageous indifference to the health, safety, and welfare of
others. A principal or employer that is other than a natural
person may be liable for punitive damages as a result of the
conduct of its agent or employee only when the plaintiff proves
by clear and convincing evidence that the damages suffered were
the result of conduct that was carried out by a senior manager of
such principal or employer with actual malice toward the
plaintiff or with conscious, reckless and outrageous indifference
to the health, safety, and welfare of others. An association,
limited liability company, or partnership may be liable for
punitive damages as a result of the conduct of its member or
partner only when the plaintiff proves by clear and convincing
evidence that the damages suffered were the result of conduct
that was carried out by a senior manager of such association,
limited liability company, or partnership, with actual malice
toward the plaintiff or with a conscious, reckless and outrageous
indifference to the health, safety, and welfare of others.
ARTICLE 4. COMPARATIVE FAULT.
§55A-4-1. Comparative fault standard established.
In any action for damages, recovery shall be predicated upon
principles of comparative fault and the liability of each person,
including plaintiffs, defendants, and nonparties, who caused the
damages shall be allocated to each such person in direct
proportion to that person's percentage of fault.
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.
§55A-4-2. Several liability.
In any action for damages, the liability of each defendant
for compensatory damages shall be several only and shall 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 the defendant for that amount.
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
that amount shall be the maximum recoverable against said
defendant.
§55A-4-3. Fault of nonparties.
(a) 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 such person was or could
have been named as a party to the suit. Such fault shall include
the fault imputed or attributed to a person by operation of law,
if any. Fault of a nonparty may be considered if the plaintiff
entered into a settlement agreement with the nonparty or if a
defending party gives notice no later than sixty days before the
date of trial that a nonparty was wholly or partially at fault.
The notice shall be given by filing a pleading or discovery
response in the action designating such nonparty and setting
forth such nonparty's name and last-known address, or the best
identification of such nonparty which is possible under the
circumstances, together with a brief statement of the basis for
believing such nonparty to be at fault. 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 by the amount of the settlement or in
proportion to the percentage of fault assigned to the settling
party or nonparty, whichever is greater. The plaintiff shall
promptly and fully inform all other persons against whom liability is asserted of the terms of any such settlement.
(b) Nothing in this article is intended to eliminate or
diminish any defenses or immunities which exist as of the
effective date of this article, except as expressly noted herein.
(c) 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 shall not subject any nonparty to
liability in that or any other action, or be introduced as
evidence of liability or for any other purpose in any other
action.
(d) 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 the provisions of this article. For this purpose,
the court may determine that two or more persons are to be
treated as a single person.
§55A-4-4. Imputed fault.
Nothing in this article may be construed as precluding a
person from being held responsible 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.
§55A-4-5. Failure to take reasonable precautionary measures.
In any civil action, the finder of fact may assess a
percentage of fault against a plaintiff who is injured as a
proximate result of that plaintiff's failure to take reasonable
precautionary measures that are available to the plaintiff.
§55A-4-6. Plaintiff involved 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 while the plaintiff is attempting to
commit, committing, or fleeing from the commission of a felony
criminal act.
§55A-4-7. Fault of person not a manufacturer.
A person who is not the manufacturer of a product but is
merely in the chain of its distribution, such as a seller,
distributor, or installer, and who did not alter, change, or
modify the product in a way that created or contributed to the
alleged defect, may not be assessed a percentage of comparative
fault under the theory of strict product liability for accidents,
injuries, or damages proximately caused, in whole or in part, by
the product.
§55A-4-8. Burden of proof.
The burden of alleging and proving comparative fault shall
be upon the person who seeks to establish such fault.
§55A-4-9. Limitations.
Nothing in this article may be construed to create a cause
of action. Nothing in this article may be construed, in any way,
to alter the immunity of any person as established by statute or
common law.
ARTICLE 5. COLLATERAL SOURCES.
§55A-5-1. Reduction in compensatory damages for collateral sources payments.
Notwithstanding any other provision of this code, in all
tort actions, regardless of the theory of liability under which
they are commenced, the total amount of compensatory damages
awarded to a plaintiff under such action shall be reduced, in
accordance with section two of this article, by any collateral
source payments made or to be made to the plaintiff, except
insurance for which the plaintiff, spouse of the plaintiff, or
parent of the plaintiff, has paid a premium, insurance that is
subject to a right of subrogation, workers' compensation benefits
that are subject to a right of subrogation, or insurance that has
any other obligation of repayment.
§55A-5-2. Postverdict determination of reduction in compensatory
damages.
The reduction in compensatory damages required under section
one of this article shall be determined by the court after the
verdict and before judgment is entered. Reduction may be made
only if the collateral source payments are compensation for the
same damages for which recovery is sought in the action. At
trial no evidence shall be admitted as to the amount of any
charges, payments, or losses for which a plaintiff (i) has
received payment from a collateral source or the obligation for
which has been assumed by a collateral source, or (ii) is, or
with reasonable certainty will be, eligible to receive payment
from a collateral source or the obligation for which will, with
reasonable certainty, be assumed by a collateral source. A
plaintiff who has received or is to receive collateral source
payments may introduce evidence before the court, but not at
trial, of any of the following: (a) Any amount which the
plaintiff has paid or contributed to secure his right to any such
collateral source payments; (b) that any recovery by the
plaintiff is subject to a lien by a collateral source; (c) that
a provider of such collateral source payments has a statutory
right of recovery against the plaintiff for reimbursement of such
payments; or (d) that the provider of such collateral source
payments has a right of subrogation to the rights of the
plaintiff.
After considering the evidence of collateral source introduced by any party, the court shall make a determination as
to the amount by which a plaintiff's compensatory damages will be
reduced by any such collateral source payments.
ARTICLE 6. STATUTE OF REPOSE.
§55A-6-1. Statute of repose.
(a) No product liability action concerning a durable good as
defined in this section may be filed more than eighteen years
after the delivery of the product to the first purchaser or
lessee.
(b) A "durable good" means any product, or any component of
any such product, which:
(1) Either has a normal life expectancy of three or more
years, or is of a character subject to allowance for depreciation
under the Internal Revenue Code of 1986; and
(2) Is either: (i) Used in a trade or business; (ii) held
for the production of income; or (iii) sold or donated to a
governmental or private entity for the production of goods,
training, demonstration, or any other similar purpose; and
(3) Is used in a workplace, and is alleged to have caused
harm that is covered under chapter twenty-three of this code.
(c) Subsection (a) of this section does not bar a product
liability action against a defendant who made an express warranty
in writing as to the safety or life expectancy of the specific
product involved which was longer than eighteen years, except that subsection (a) shall apply at the expiration of that
warranty.
ARTICLE 7. DAMAGES FOR NONECONOMIC LOSS.
§55A-7-1. Damages for noneconomic loss.
Damages for noneconomic loss shall be recoverable in an
action only as follows:
(a) A plaintiff may recover damages for noneconomic loss
only in the types of civil actions in which such damages were
authorized at the time of enactment of this chapter;
(b) In civil actions based on physical injury, the plaintiff
who experienced the physical injury on which the action is based
and all plaintiffs who derive their claims from or through such
plaintiff may recover damages for noneconomic loss in a total
amount for all such plaintiffs not to exceed the greater of two
hundred fifty thousand dollars or three times economic damages to
a maximum of five hundred thousand dollars. However, in the
event that the physical injury is permanent and severe physical
deformity, loss of use of limb or loss of a major bodily organ
system or permanent physical functional injury that permanently
prevents the injured person from being able to independently care
for himself or herself and perform life sustaining activities,
then the plaintiff who experienced the physical injury and all
other plaintiffs who derive their claims from or through such
plaintiff may recover damages for noneconomic loss in a total amount for all such plaintiffs not to exceed the greater of one
million dollars or the product of the amount calculated on an
annual basis pursuant to section ten, article six, chapter
twenty-one-a of this code, which represents the average weekly
wage, annualized, for a worker employed in this state times the
number of years remaining in the plaintiff's expected life,
regardless of the number of parties against whom the action is
brought or could have been brought or the number of claims
asserted or actions brought or that could have been asserted or
brought with respect to the injury;
(c) In all actions other than those based on physical injury
in which damages for noneconomic loss were authorized to be
recovered at the time of enactment of this chapter, the plaintiff
who experienced the economic loss on which the action is based
and all plaintiffs who derive their claims from or through such
plaintiff may recover damages for noneconomic loss in a total
amount for all such plaintiffs no greater than the award of
damages for economic loss or one million dollars, whichever is
less, regardless of the number of parties against whom the action
is brought or could have been brought or the number of claims
asserted or actions brought or that could have been asserted or
brought with respect to the economic loss.
As used in this section, "physical injury" means an actual
injury to the body proximately caused by the act complained of and does not include physical symptoms of the mental anguish or
emotional distress for which recovery is sought when such
symptoms are caused by, rather than the cause of, the pain,
distress, or other mental suffering.
ARTICLE 8. CONFLICTING LAWS REPEALED, APPLICABILITY AND
SEVERABILITY.
§55A-8-1. Conflicting laws repealed.
This chapter supersedes, invalidates, and repeals all other
state laws which conflict with its provisions.
§55A-8-2. Applicability.
This chapter applies to all causes of action arising on or
after the effective date of this chapter.
§55A-8-3. Severability clause.
The provisions of this chapter and each article, section,
subsection, subdivision, paragraph, and subparagraph thereof
shall be severable from the provisions of each other
subparagraph, paragraph, subdivision, subsection, section,
article, or chapter of this code so that if any provision of this
chapter be held void, the remaining provisions of this act and
this code shall remain valid.
NOTE: The purpose of this bill is to enact the "Injured
Consumers Bill of Legal Rights and Civil Justice Reform Act of
1998."
This chapter is new; therefore, strike-throughs and
underscoring have been omitted.