FLOOR BOOK MEMORANDUM House Committee on the Judiciary
Comm. Sub. for H.B. 2002
Prepared by: Mark Adkins
(1/22/2015) Phone: 304-340-3133
email: mark.adkins@wvhouse.gov______________________________________________________________________________
SPONSORS: Delegates Wagner, Overington, A. Evans, Anderson, Waxman, Shott, Kelly, E. Nelson, Folk, Espinosa and Mr. Speaker (Mr. Armstead)
TITLE: Predicating actions for damages upon principles of comparative fault
DATE INTRODUCED: January 14, 2015; referred to the Committee on the Judiciary
CODE SECTIONS AFFECTED: W.Va. Code §55-7-13 and §55-7-24 (repealed)
IDENTICAL/SIMILAR BILLS: SB2, SB103
CHAIRMAN’S SUMMARY: This committee substitute repeals W.Va. Code §55-7-13 (statutory right of contribution) and §55-7-24 (joint and several liability) and amends the Code by adding four new sections:
1. §55-7-13a which establishes the comparative fault standard.
2. §55-7-13b defines the terms Agent, Compensatory Damages, Damages, Defendant, Fault and Plaintiff.
3. §55-7-13c implements several liability and outlines the manner in which a judgment must be calculated based upon an allocation of fault among multiple parties. This section also outlines the exclusions to several liability.
4. §55-7-13d
A. Requires the trier of fact to consider the fault of all parties and nonparties;
B. Requirements for notice of nonparties; and placing the burden of proof for fault of a nonparty on the defendant;
C. A settlement between a plaintiff and a party or nonparty before verdict must be disclosed;
D. The fault assessed to a nonparty may not be used as evidence in subsequent actions;
E. Eliminates liability of a defendant’s negligence if the plaintiff was in the process of committing a felony and convicted (or could have been convicted) of the felony.
FULL ANALYSIS:
I. EXISTING LAW:
W.Va. Code §55-7-13 - This section creates a statutory claim for contribution by joint judgment debtors.
W.Va. Code §55-7-24 - This section sets out the manner in which Courts are to apply joint and several liability to judgment debtors in West Virginia.
II. THE COMMITTEE SUBSTITUTE:
This bill seeks to repeal W.Va. Code §55-7-13 and W.Va. Code §55-7-24. Furthermore, this bill seeks to amend the Code and add four new sections:
1. §55-7-13a. Comparative fault standard established.
a. Subsection (a) defines comparative fault.
b. Subsection (b) states that actions for damages will be based upon a comparative fault analysis for all parties and nonparties who caused the damages.
c. Subsection (c) requires that the allocation of comparative fault to a specific incident or injury must equal either zero or one hundred percent.
2. §55-7-13b. Definitions.
a. This section defines the following terms: Agent, Compensatory Damages, Damages, Defendant and Plaintiff.
3. §55-7-13c. Liability to be several; amount of judgment; allocation of fault.
a. Subsection (a) states that the liability for a defendant shall be several.
-Joint liability may be imposed if defendants "consciously conspire and deliberately pursue a common plan or design to commit a tortious act or omission."
-Jointly liable defendants maintain right of contribution against one another.
b. Subsection (b) - Outlines the manner in which to calculate each defendant’s judgment.
-A defendant’s percentage of fault multiplied by the verdict is the maximum amount recoverable from that defendant.
c. Subsection (c) states that a plaintiff may not seek to allocate the fault of an immune defendant or a defendant whose liability is limited by law to any other defendant.
d. Subsection (d) identifies instances in which a defendant may be subject to joint liability:
1. A defendant that is driving while under the influence, which is a proximate cause of the plaintiff's damages.
2. A defendant’s criminal conduct, which is a proximate cause of the plaintiff's damages.
3. A defendant who illegally disposes of hazardous waste, which is a proximate cause of the plaintiff's damages.
e. Subsection (e) excludes the application of this section to the following statutes:
1. §29-12-1 et seq. - Governmental Tort Claims and Insurance Reform Act
2. §46-1-1 et seq. - WV Uniform Commercial Code
3. §55-7B-1 et seq. - WV Medical Professional Liability Act
4. §55-7-13d. Determination of fault; imputed fault; plaintiff's involvement in felony criminal act; burden of proof; limitations; applicability; severability.
(a)(1). Allows for trier of fact to consider the fault of all persons including nonparties.
(a)(2). The fault of a nonparty or settling party may be considered in the allocation of fault.
- The defendant must give notice no later than 180 days before trial (by pleading or discovery response) BUT no later than 60 days before joinder deadline.
- The defendant has the burden to prove fault on the nonparty.
(a)(3). The plaintiff must inform all potential liable parties of a settlement.
(a)(4). This section will not eliminate any defenses or immunities.
(a)(5). Assessment of fault on a nonparty at trial may not be used as evidence in any subsequent action.
(a)(6). Requires the jury to answer special interrogatories to assign fault.
b. This section will not preclude imputed fault upon a defendant for the actions of the defendant’s agents or servants.
c. A defendant will not be liable for negligence if the plaintiff was damaged while committing a felony.
- the plaintiff must be convicted, or if deceased, found by a jury to be guilty beyond a reasonable doubt.
d. The person seeking to establish fault has the burden of proof.
e. This section does not create a cause of action.
III. COMMITTEE AMENDMENTS TO THE COMM. SUB.:
§55-7-13a:
• (a) - The word “alleged” was removed before “personal injury”. (Amd 5)
§55-7-13b:
• The definition of “Product” was removed. (Amd 12a)
§55-7-13c:
• (d)(1-3) - In each subdivision, the term “the proximate cause” was replaced with “a proximate cause.” (Amd 6)
§55-7-13d
• (a)(2) - If fault is allocated to a nonparty, the defendant must prove the nonparty’s fault by a preponderance of the evidence. (Amd 2)
• Notice to place a nonparty on a verdict must be 180 days before trial, but no later than 60 days before the joinder deadline. (Amd 14a)
• (a)(3) - The language regarding credit/setoff was removed. The plaintiff must disclose to all potential liable parties of a settlement with a party or nonparty. The amount may not be disclosed unless joint liability is applicable. (Amd 3a)
• (a)(5) - Revised the language of the subsection that fault assessed to a nonparty may not be introduced as evidence in subsequent actions. (Amd 13a)
• (c) - Language was added that the plaintiff committing a felony must be convicted, or if deceased, the jury must make a finding of guilt beyond a reasonable doubt. (Amd 19a)
• Subsection (d) of the Comm. Sub. - “Fault of a person not a manufacturer” was removed. (Amd 12a)
• Subsection (g) of the Comm. Sub. - Conflicting Laws Repealed (Amd 18)
IV. SECTION DIRECTORY: §55-7-13a - Comparative fault established; §55-7-13b - Definitions; §55-7-13c - Liability to be several; amount of judgment; allocation of fault; §55-7-13d - Determination of fault; imputed fault; plaintiff’s involvement in felony criminal act; burden of proof; limitations; applicability; severability.
V. FISCAL ANALYSIS: There is not a Fiscal Note because no fiscal impact has been identified.
VI. COMMENTS
A. CONSTITUTIONAL ISSUES: None identified
B. GOVERNMENT AGENCIES AFFECTED: No agencies affected.
C. RULE MAKING AUTHORITY: None.
D. COMMITTEE REFERENCE: No second reference.
E. TITLE ANALYSIS: This bill’s title appears to be within Constitutional parameters.
F. DRAFTING ISSUES OR OTHER COMMENTS: None.
G. EFFECTIVE DATE: 90 days from passage.