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WV Update – West Virginia State Legal Summary Outline

A. Liability/Fault

1.           Fault Scheme

Modified Comparative – 51% Bar

If a plaintiff is negligent, the degree of fault will reduce their recovery, until it equals the fault of others, then it will be barred. W. Va. Code § 55-7-13(a-d) (2015).

Under the modified comparative fault system, each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage (50 percent in this case). If the plaintiff’s own negligence reaches this percentage bar, then the plaintiff cannot recover any damages.

2. Joint & Several Liability

Under West Virginia law, a party only pays its percentage of fault. Joint and several liability will apply, however, to: (1) defendants who consciously conspire to commit a tortious act or omission, (2) a defendant who is driving under the influence, (3) a defendant whose criminal conduct is the proximate cause of plaintiff’s injury, and (4) a defendant who illegally disposes of hazardous waste. § 55-7-13c(a)-(h).

Any person held jointly liable under this section shall have a right of contribution from other defendants that acted in concert. § 55-7-13c(a)-(h)

Negligence by the plaintiff is a bar to recovery only if it exceeds the fault of others but even where it does not, their recovery is reduced by the degree of their own fault. §55-7-13a

3. Non-parties on Verdict Forms Available

In making its determination, the trier of fact will consider fault of all persons, including nonparties, as long as the plaintiff entered into a settlement with the nonparty, or a defending party gives notice within 180 days after being served that the non-party was wholly or partially at fault. W. Va. Code § 55-7-13d(a)(2).

If fault is assessed to non-parties, it does not subject them to liability and may not be introduced as evidence of liability in any other action.  W. Va. Code 55-7-13d(a)(5).

4. Charitable Immunity; COVID-19 Immunity

West Virginia no longer recognizes the common law concept of charitable immunity.  Rather, West Virginia law on immunity for volunteers of non-profit organizations is now codified in 55-7C-3.  West Virginia law also grants immunity to emergency volunteers, physicians with volunteer medical licenses, physician volunteers at athletic games, and a handful of other specific volunteer scenarios.

West Virginia now recognizes immunities arising from the Covid-19 pandemic. Under the recently enacted COVID-19 Jobs Protection Act, there is no claim against any person, essential business, business, entity, health care facility, health care provider, first responder, or volunteer for loss, damage, physical injury, or death arising from COVID-19, from COVID-19 care, or from impacted care. W. Va. Code § 55-19-4. The COVID-19 Jobs Protection Act also provides that “workers’ compensation benefits shall be the sole and exclusive remedy” for “work-related injury, disease, or death caused by or arising from COVID-19 in the course of and resulting from covered employment.” W.Va. Code §55-19-6.

5. Premises Liability

West Virginia has abolished the common law distinction between a landowner’s duty to invitees and licensees, while retaining the distinction and exceptions for trespassers. Mallet v. Pickens, 206 W. Va. 145,155, 522 S.E.2d 436, 446 (1999). The Mallet decision kept in place the common law rule for the duty owed to a trespasser. Id. Senate Bill 3 – which was effective April 29, 2015, and applies prospectively only – provides that a possessor of real property owes no duty of care to a trespasser except the common law rights of action, such as causing willful or wanton injury to the trespasser. W. Va. Code § 55-7-27. West Virginia also recognizes the open an obvious hazard doctrine. W. Va. Code § 55-7-28.

Although the Attractive Nuisance Doctrine is not recognized in West Virginia, the Supreme Court of Appeals has adopted a similar rule, the “dangerous instrumentality” doctrine. Hatten v. Mason Realty Co., 148 W. Va. 380, 387, 135 S.E.2d 236, 241 (1964), citing Waddell v. New River Co., 141 W. Va. 880, 93 S.E.2d 473 (1956); Harper v. Cook, 139 W. Va. 917, 82 S.E.2d 427 (1954); Tiller v. Baisden, 128 W. Va. 126, 35 S.E.2d 728 (1945); White v. Kanawha City Co., 127 W. Va. 566, 34 S.E.2d 17 (1945).  Where a dangerous instrumentality or condition exists at a place frequented by children who suffer injury, the parties responsible for such dangerous condition may be held liable for such injury if they knew, or should have known, of the dangerous condition and that children frequented the dangerous premises either for pleasure or out of curiosity. Id.

B. Damages

1. Damages Cap(s):  General, Non-economic, Wrongful Death

In West Virginia, there is no cap on compensatory damages. Punitive (exemplary) damages may not exceed the greater of (1) four times the amount of compensatory damages, or (2) $500,000. W. Va. Code § 55-7-29(c). Non-economic damages are only capped in medical malpractice actions at $250,000 per occurrence (see W. Va. Code § 55-7B-8) in cases of common injuries, and $500,000 for cases of catastrophic injuries.

In West Virginia the collateral source rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party.  Syl. Pt. 7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).  It also ordinarily prohibits inquiry as to whether the plaintiff has received payments from collateral sources.  The foregoing is based upon the theory that the jury may well reduce the damages based on the amounts that the plaintiff has been shown to have received from collateral sources.  Syl. Pt. 8, Ratlief v. Yokum,167 W.Va. 779, 280 S.E.2d 584 (1981).  In determining whether the collateral source rule applies, the Court looks not only to the source of income but also its character.  Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (W.Va. 1991).  West Virginia does not allow collateral source offsets if the benefits were paid under a contractual arrangement that the plaintiff made independently of the tortfeasor.  Johnson by Johnson v. General Motors Corporation, 190 W.Va. 236, 438 S.E.2d 28 (1993).

There is no ceiling on recovery in a wrongful death action. §55-7-6(b).

2. Charitable Immunity Caps

There are no caps on charitable immunity in West Virginia. See charitable immunity in the Liability section above.

3. Governmental Immunity Caps

The West Virginia Governmental Tort Claims and Insurance Reform Act contains a strict prohibition against awards of punitive or exemplary damages. Damages for economic losses are not capped. Non-economic damages, however, are capped at five hundred thousand dollars ($500,000). In apportioning fault against a political subdivision or its employees, only Defendants who bear 25% or more of fault attributable to all Defendants, as determined by a jury, can be held jointly and severally liable for a verdict. If fault is apportioned at less than 25%, the Defendant can only be held severally liable. In the event a Defendant is found to be jointly and severally liable, the Defendant has right of contribution for any amount paid to a Plaintiff in excess of the percentage of fault attributable to the Defendant. The right to contribution is extinguished in the event a good faith settlement is reached prior to a jury verdict.

4. Paid vs Billed Medical Expense Allowed at Trial

A West Virginia personal injury plaintiff may claim the full amount of his/her medical bills as damages, regardless of whether the medical providers have discounted or written off portions of those bills as part of health insurance payments.

West Virginia does not allow collateral source offsets if the benefits were paid under a contractual arrangement that the plaintiff made independently of the tortfeasor.  This includes first-party medical benefits, health insurance benefits and underinsurance benefits. Johnson by Johnson v. Gen. Motors Corp., 190 W. Va. 236, 438 S.E.2d 28 (1993); Syllabus Point 7, Kenney v. Liston, 233 W. Va. 620, 623, 760 S.E.2d 434, 437 (2014).

5. Punitive Damages Available – Limitations – Insurability

• West Virginia allows for punitive damages where there is “evidence that a defendant acted with wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others to appear or where the legislature so authorizes.” Michael ex rel. Estate of Michael v. Sabado, 453 S.E.2d 419, 435 (W. Va. 1994). “Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has occurred.” Garnes v. Fleming Landfill, 413 S.E.2d 897, 909 (W. Va. 1991). Punitive damages must bear a “reasonable relationship” to the potential of harm caused by the defendant’s actions as well as the compensatory damages. Id.
• Punitive (exemplary) damages may not exceed the greater of (1) four times the amount of compensatory damages, or (2) $500,000. W. Va. Code § 55-7-29(c).
• West Virginia public policy does not preclude insurance coverage arising from gross, reckless, or wanton negligence. Syl. pt. 3, Hensley v. Erie Ins. Co., 283 S.E.2d 227 (W. Va. 1981). However there is no duty to defend or insure against punitive damages arising from intentional conduct. Horace Mann Ins. Co. v. Leeber, 376 S.E.2d 581, 587 (W. Va. 1988). An insurance company may decline to insure against punitive damages by an express exclusion in its policy to that effect and to the extent that the insurance company exercises this option it is protected against payment of punitive damages. State ex rel. State Auto Ins. Co. v. Risovich, 511 S.E.2d 498, 504 (W. Va. 1998).

5. Wrongful Death Damages, Including whether Pre-Death Pain and Suffering is Allowed

Damages allowed in Wrongful Death actions are found in W. Va. Code § 55-7-6(c)(1), which provides:

The verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.

The damages listed within 55-7-6 are a non-exhaustive list of remedies.

Although the wrongful death statute does not specifically authorize punitive damages, the Supreme Court of Appeals of West Virginia has determined that punitive damages may be recovered in wrongful death actions. Bond v. City of Huntington, 166 W. Va. 581, 276 S.E.2d 539 (1981), superseded by statute as stated in Rice v. Ryder, 184 W. Va. 255, 400 S.E.2d 263 (1990).

West Virginia also recognizes survival actions. If a cause of action for personal injury or damage to real and/or personal property has been filed and is within the applicable statute of limitations, if the injured party dies pending the action, it may be revived in favor of the personal representative of such injured party and prosecuted to judgment and execution. § 55-7-8a(b). If the injured party dies before commencing such action, the action may be commenced by the personal representative of the injured party, so long as the statute of limitations has not run. Any such action shall be instituted within the same period of time that would have been applicable had the injured party not died. § 55-7-8a(c)

The decedent’s personal estate may recover for the pain and suffering that the decedent suffered between the time of injury and the time of death, where the injury resulted in death and regardless of whether decedent instituted an action for personal injury prior to his death. However, there must be evidence of conscious pain and suffering prior to death.  Where death was instantaneous, or there is no evidence that the decedent consciously perceived pain and suffering, no damages for pain and suffering are allowed. Syl. pt. 6, McDavid v. United States, 213 W. Va. 592, 584 S.E.2d 226 (2003); W. Va. Code § 55-7-6.

7. Prejudgment and Post-Judgment Interest

Except where it is otherwise provided by law, every judgment or decree for the payment of money, shall bear simple, not compounding, interest, whether stated in the judgment or not. W. Va. Code § 56-6-31.

In any judgment or decree that contains special damages, as defined below, or for liquidated damages, the court may award prejudgment interest on all or some of the amount of the special or liquidated damages, as calculated after the amount of any settlements. Any such amounts of special or liquidated damages shall bear simple, not compounding, interest. Special damages include lost wages and income, medical expenses, damages to tangible personal property and similar out-of-pocket expenditures, as determined by the court. If an obligation is based upon a written agreement, the obligation bears prejudgment interest at the rate and terms set forth in the written agreement until the date the judgment or decree is entered and, after that, the judgment interest is the same rate as provided for in the post-judgment interest. W. Va. Code § 56-6-31(b).

Notwithstanding §47-6-5, The rate of post-judgment interest on judgments and decrees for the payment of money is two percentage points above the Fifth Federal Reserve District secondary discount rate in effect on January 2, of the year in which the judgment or decree is entered: Provided, That the rate of post-judgment interest may not exceed nine percent per year or be less than four percent per year. Once the rate of interest is established by a judgment or decree as provided in this section that established rate shall after that remain constant for that particular judgment or decree, notwithstanding changes in the Federal Reserve District discount rate in effect in subsequent years. W. Va. Code § 56-6-31(c).

C. Statute of Limitations (Personal Injury, Sexual Assault, Intentional Torts and Breach of Contract)

1. Bodily Injury / Property Damage: An action for negligent damage to person or property must be brought within two years after the right to bring the cause of action has accrued; however, suit must be filed within one year if the claim would not survive the death of the injured party.  Va. Code § 55-2-12.
2. Wrongful Death / Survival Action: An action for wrongful death or a survival action must be filed within two years of the decedent’s death.  55-2-12; § 55-7-6(d).
3. Product Liability: In product liability cases, the two year statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know (1) that he has been injured; (2) the identity of the maker of the product; and (3) that the product had a causal relation to his injury.  55-2-12; Syl. pt. 1, Hickman v. Grover, 178 W. Va. 249, 358 S.E.2d 810 (1987).
4. Breach of Contract: Where the contract is in writing, a breach of contract action must be brought within ten years of the date on which the act breaching the contract becomes known. The statute of limitations for actions on unwritten contracts is five years.  55-2-6.
5. Bad Faith Claims: Claims involving unfair claims settlement practices that arise under the Unfair Trade Practices Act are governed by the one-year statute of limitations set forth in the West Virginia Code.  55-2-12(c); Wilt v. State Auto. Ins. Co., 203 W. Va. 165, 506 S.E.2d 608 (1998). “The one year statutory limitation period on an insureds’ common law bad faith claim against a carrier brought pursuant to Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W. Va. 323, 352 S.E.2d 73 (1986), begins to run after the policyholder prevails in his/her property damage suit.” State ex rel. Erie Ins. Prop. & Cas. Co. v. Beane, No. 15-0968, 2016 WL 3392560, at *4 (W. Va. June 13, 2016).

D. Specific Topics/Issues

1. Uninsured/Underinsured Motorist

For policies in effect before January 1, 2016, minimum coverage is: bodily injury, $20,000 per person, $40,000 per accident; property damage, $10,000.  § 33-6-31(b); § 17D-4-12(b)(2). Uninsured and underinsured motorist coverage must be offered for purchase in amounts of up to $100,000 per person, $300,000 per accident, and $50,000 in property damage. § 33-6-31(b).  With regard to policies placed or renewed beginning January 1, 2016, insurers must increase minimum uninsured coverage to bodily injury liability coverage of $25,000 per person, $50,000 per accident, and $25,000 property damage liability coverage. W. Va. Code § 33-6-31(b), referencing W. Va. Code § 17D-4-2(b). Underinsured motorist coverage is not mandatory.

2. Medical/PIP Tort Thresholds

West Virginia auto insurance law does not require the purchase of PIP.  In West Virginia, it is generally held that medical payments provisions in automobile liability insurance policies are separate and apart from the liability provisions of the policies.  The medical payment provisions in automobile liability policies are akin to personal injury accident policies.  Carney v. Erie Ins. Co., Inc., 189 W. Va. 702, 434 S.E.2d 374 (1993).

If an insurer does offer and pays PIP and the policy includes a subrogation clause, the insurer may subrogate against the insured’s third-party recovery.  A provision in an insurance policy providing for the subrogation of the insurer to the rights of the insured to the extent that medical payments are advanced to such insured by the insurer is valid and enforceable. Travelers Indem. Co. v. Rader, 152 W. Va. 699, 166 S.E.2d 157 (1969).

3. Statutory Offers of Judgment/Settlement and Implications

At any time more than ten days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or to the effect specified in the offer, with costs then accrued.  W. Va. R. Civ. P. 68(a). If the offer is not accepted and the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. W. Va. R. Civ. P. 68(c). While the term “costs” usually does not include attorney’s fees, if an applicable statute defines costs to include attorney’s fees, then attorney’s fees may be recovered as costs under an offer of judgment. Shafer v. Kings Tire Serv., 215 W. Va. 169, 173, 597 S.E.2d 302, 306 (2004).

4. Obligation regarding Responding to Policy Limit Demands

Insurers have an implied duty to negotiate a good faith settlement. The common law duty of good faith and fair dealing may be breached, in a third party situation, where an insurance company fails to settle a claim against its insured where the demand is within policy limits and a jury returns a verdict against the insured in excess of the policy limits. In Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va. 585, 396 S.E.2d 766 (1990), an insured brought an action against his insurer for failure to settle a claim in the underlying litigation within policy limits. The West Virginia Supreme Court held that, in such cases, it is the insurer’s burden to prove by clear and convincing evidence that it attempted in good faith to negotiate a settlement, that any failure to enter into a settlement where the opportunity to do so existed was based on reasonable and substantial grounds, and that it accorded the interests and rights of the insured at least as great a respect as its own.

5. Risk Transfer & Relevant Contractual Indemnity Law

West Virginia has an Anti-Indemnity Statute which provides as follows:

• 55-8-14. Agreements to indemnify against sole negligence of the indemnitee, his agents or employees against public policy; no action maintainable thereon; exceptions.

A covenant, promise, agreement or understanding in or in connection with or collateral to a contract or agreement entered into on or after the effective date of this section, relative to the construction, alteration, repair, addition to, subtraction from, improvement to or maintenance of any building, highway, road, railroad, water, sewer, electrical or gas distribution system, 23 Revised 2018 excavation or other structure, project, development or improvement attached to real estate, including moving and demolition in connection therewith, purporting to indemnify against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the indemnitee, his agents or employees is against public policy and is void and unenforceable and no action shall be maintained thereon. This section does not apply to construction bonds or insurance contracts or agreements.

This statute, WV Code 55-8-14, requires courts to void a broad indemnity agreement only if the indemnitee is found by the trierof-fact to be solely (100 percent) negligent in causing the harm and the contract that allowed the indemnity for sole negligence was not, in substance, a contract allocating the duty to purchase insurance for the benefit of all parties to the contract. Dalton v. Childress Serv. Corp., 189 W. Va. 428, 432 S.E.2d 98 (1993).

Va. Code § 55-8-14. Dalton v. Childress Serv. Corp., 189 W. Va. 428, 432 S.E.2d 98 (1993).

14. Statutory Elder Abuse/Enhanced Remedies

In West Virginia, elder abuse statutes define, and protect vulnerable adults, from any abuse or willful acts or omissions of a caregiver or any other person which results in physical injury, mental anguish, unreasonable confinement, sexual abuse or exploitation, or financial exploitation. W. Va. Code §61-2-29 and §61-2-29b (criminal abuse and financial exploitation); W. Va. Code 55-7J-1 (civil financial exploitation).

If any abuse is reported and confirmed, the department of health and human resources will arrange for adult protective services for the victim. If the victim or guardian refuses the help of protective services, then a victim may: seek a court-appointed guardian, a family protective order against the offender, removal of an abusive or neglectful guardian provision of appropriate treatment, criminal prosecution of the offender, or any other available administrative, legal, or other remedies.

7. Insured’s Right to Independent Counsel Based on a Reservation of Rights

A defense attorney, employed to represent an insured in a liability matter, is not an agent of the insurance company, because the attorney is professionally obligated to represent only the interests of the client/insured, not the interests of the insurance company. Barefield v. DPIC Companies, Inc., 600 S.E.2d 256, 268 (W. Va. 2004). Because a defense attorney is ethically obligated to maintain an independence of professional judgment in the defense of a client/insured, an insurance company possesses no right to control the methods or means chosen by the attorney to defend the insured. Id. at 270

8. Timeliness of Coverage Declinations/Reservation of Rights Letters, as well as the Filing of Declaratory Judgment Actions

In the event of a declination, the insurer shall, within thirty days of the receipt of the written nonbinding application or written request for coverage provide the applicant reasons for such declination. W. Va. Code § 33-6B-4.

If the insurer needs more than thirty (30) calendar days from the date that a proof of loss from a first-party claimant or notice of claim from a third-party claimant is received to determine whether a claim should be accepted or denied, it shall so notify the claimant in writing within fifteen (15) working days after the thirty-day period expires. If the investigation remains incomplete, the insurer shall provide written notification of the delay to the claimant every forty-five (45) calendar days thereafter until the investigation is complete. All such notifications must set forth the reason(s) additional time is needed for investigation.  W. Va. Code § 114-14-6.7. Within ten (10) working days of completing its investigation, the insurer shall deny the claim in writing or make a written offer, subject to policy limits and, with respect to medical professional liability claims, subject to applicable statutory requirements set forth in the Medical Professional Liability Act. W. Va. Code § 114-14-6.3.

There is also no specific statute or regulation denoting a timeframe in which to file a declaratory judgment action.

9. Requirements regarding Pre-Litigation Disclosure of Insurance Policy Information

In West Virginia, an insurer must disclose the coverage and limits of an insurance policy within 30 days after the information is requested in writing by a claimant. W. Va. Code § 33-6F-2.

10. Additional West Virginia insurance issues

By statute, West Virginia is a valued policy state, meaning the insured dwelling is considered to be worth the value stated on the policy, regardless of whether it is, by market standards or otherwise, too high or too low a value. “[I]n case of partial loss by fire or otherwise…of the real property insured, the liability shall be for the total amount of the partial loss, not to exceed the whole amount of insurance upon the real property as stated in the policy.”  W.V.Code § 33-17-9.

Under West Virginia Trial Court Rule 25.10, it has been held that the trial court can impose sanctions on an insurer for failing to appear at a court-ordered mediation.  The insurance carrier for an insured party is considered a party to court-ordered mediation and, thus, must be present through a representative who has full decision making power. Casaccio v. Curtiss, 228 W. Va. 156, 164, 718 S.E.2d 506, 514 (2011).  Pursuant to Rule 25.10, the following “persons” must appear at a court-ordered mediation:

1. Each party or the party’s representative having full decision-making discretion to examine and resolve issues;
2. Each party’s counsel of record; and
3. A representative of the insurance carrier for any insured party, which representative has full decision-making discretion to examine and resolve issues and make         Id. at 162, 512, quoting W. Va. Trial Ct. R. 25.10.