Senate Bill No. 242
(By Senators Sprouse, Minear, Guills, Weeks, Harrison, Deem and Facemyer)
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[Introduced January 21, 2004; referred to the Committee on the Judiciary.]
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A BILL to amend the code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §55A-1-1, §55A-1-2, §55A-1-3, §55A-1-4, §55A-2-1, §55A-3-1, §55A-3-2, §55A-3-3, §55A-3-4, §55A-3-5, §55A-3-6, §55A-4-1, §55A-4-2, §55A-4-3, §55A-4-4, §55A-4-5, §55A-4-6, §55A-4-7, §55A-4-8, §55A-4-9, §55A-5-1, §55A-5-2, §55A-6-1, §55A-7-1, §55A-8-1, §55A-8-2 and §55A-8-3, all 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 damages 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 damages 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 2004; and severability.

Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new chapter, designated §55A-1-1, §55A-1-2, §55A-1-3, §55A-1-4, §55A-2-1, §55A-3-1, §55A-3-2, §55A-3-3, §55A-3- 4, §55A-3-5, §55A-3-6, §55A-4-1, §55A-4-2, §55A-4-3, §55A-4-4, §55A-4-5, §55A-4-6, §55A-4-7, §55A-4-8, §55A-4-9, §55A-5-1, §55A-5- 2, §55A-6-1, §55A-7-1, §55A-8-1, §55A-8-2 and §55A-8-3 , all to read as follows:
CHAPTER 55A. INJURED CONSUMERS BILL OF RIGHTS
AND CIVIL JUSTICE REFORM.

ARTICLE I. SHORT TITLE; LEGISLATIVE FINDINGS AND DECLARATION OF PURPOSES; DEFINITIONS.

§ 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 2004. "
§ 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. It provides access to courts for people of low or moderate incomes. However, it can be unfair to many of those it is supposed to serve. 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. 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. Where there has been a mass disaster or an unexpected traumatic loss, there is generally no "cooling off" period after the tragedy. Agents may take unfair advantage by pressuring vulnerable, ill- prepared victims to retain them for extravagant fees;
(5) There does not appear to be adequate competition with respect to contingency fees. Instead, a standard fee of one-third or more of any recovery received plus expenses appears to be the norm. This is true 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 hereby 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 amounts to be awarded in punitive damages and 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 damages awards, which have as their object the punishment of the defendant for certain conduct and the deterrence of the defendant from like conduct in the future; (7) a common law that denies to the public any sharing of damage awards 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 as little as one percent at fault in causing 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 ten, 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 allowed 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 them and by exorbitant settlements extorted 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 Legislature further finds and declares that there exist, for the foregoing reasons, clear social and economic problems associated with our civil justice system and a need to correct those problems by restoring rationality, certainty, and fairness to the civil justice system through the enactment of the Injured Consumers ' Bill of Rights and Civil Justice Reform Act of 2004.
§ 55A-1-4.Definitions.

As used in this chapter:

(a) " Actual malice " means specific intent to cause personal injury, death, or damage to property.
(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 the United States Social Security Act, as amended; any state or federal disability, workers ' compensation, or other act designed to provide income replacement, medical, or other benefits; 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; 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 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.
(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 " 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 other such 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 section only if the subject of the tort 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 $5 million.
(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; 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) 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 the 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 pre-existing personal, family or attorney/client relationship, nor does it prohibit a claimant from contacting 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 the 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.
(c) 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.
(d) 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 ' s services.
(e) 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 co-counsel associated with the case.
(f) 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.
(g) 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.
(h) Any agreement for the payment of legal services on a contingency fee basis may be cancelled in its entirety by the claimant within three days 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.
(i) 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 to be provided with this Fact Sheet. A contingency fee is an arrangement by which a claimant pays the attorney a percentage of the amount awarded for the injury. This can result in a very substantial fee, and you should consider it very carefully. The law allows you three (3) days 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 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 FEEYOUR FEE
On the first $100,000 25 to 35 percent___ percent
On the amount between
$100,000 and $500,000 20 to 25 percent___ percent
On the amount
over $500,000

15 to 20 percent___ percent

TOTAL ESTIMATED EXPENSES $____________
(includes court costs, expert witness fees, stenographer fees, etc. and charges)

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: _______________________

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RIGHT OF CANCELLATION

You have three (3) days 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 ____________

(j) An attorney retained by a claimant in connection with a personal injury claim shall, within a reasonable time not later than 30 days after the personal injury claim is finally settled or adjudicated, disclose in a written statement to the claimant the total amount of the hourly fees or total contingent fee for the attorney' s services in connection with the personal injury claim and 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.
(k) In cases involving a contingency fee in excess of the "standard public policy maximum fee" as contained in the "contingency fee information fact sheet" provide 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.
(l) 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.
(m) The provisions of this section shall be in addition to and not in lieu of any other available remedies or penalties.
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. Punitive damages may not be awarded on a claim for breach of contract or in any action other than a civil action seeking money for damages and unless compensatory damages have been awarded against a defendant to the plaintiff for the same course of conduct of the defendant. 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 $250,000 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 $100,000 where the punitive damages are recoverable from a defendant which is not a large employer. These provisions 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 these amounts, 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 the jury returns a verdict of punitive damages against a defendant in the case at bar and if the total amount of any prior punitive damages awards obtained by the same or other plaintiffs in any state or federal court against that defendant for the same course of conduct as alleged in the case at bar exceeds the applicable amount set forth in section two of this article then no punitive damages may be awarded against that defendant in the case at bar. If the total amount of any such prior punitive damages awards is less than the applicable amount set forth in section two of this article, then the amount of any punitive damages award in the case at bar shall be reduced if necessary so that the combined total amount of punitive damages awarded in the case at bar and such prior actions 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.
Since 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 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 damages 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 damages award. The plaintiff ' s attorney ' s share of a punitive damages 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 damages 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 meant 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.
§ 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 or 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 has received payment from a collateral source or the obligation for which has been assumed by a collateral source, or 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 any amount which the plaintiff has paid or contributed to secure his right to any such collateral source payments, any recovery by the plaintiff is subject to a lien by a collateral source, that a provider of such collateral source payments has a statutory right of recovery against the plaintiff for reimbursement of such payments, or 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 after the eighteen year period beginning at the time of 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 3 or more years, or is of a character subject to allowance for depreciation under the Internal Revenue Code of 1986; and (2)is either used in a trade or business, held for the production of income, or 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 that this bill became a law;
(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 $250,000 or three times economic damages to a maximum of $500,000. 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 article four, chapter twenty-three of this code, which represents the maximum 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 this bill became a law, 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 .
§ 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 reform the civil justice system.

This chapter is new; therefore, strike-throughs and underscoring have been omitted.