Senate Bill No. 198
(By Senator Caruth)
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[Introduced January 13, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §55-7-24 of the Code of West Virginia,
1931, as amended, relating to properly apportioning the
percentage of fault to all defendants whose tortious conduct
caused an incident, injury or damages at issue in a case.
Be it enacted by the Legislature of West Virginia:
That §55-7-24 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-24. Apportionment of damages.
(a) In any cause of action involving the tortious conduct of
more than one
defendant party, the trial court shall:
(1) Instruct the jury to determine, or, if there is no jury,
find, the total amount of damages sustained by the
claimant
plaintiff or plaintiffs who remain parties at the time the verdict
is rendered and the proportionate fault of each
of the parties in the litigation at the time the verdict is rendered defendant whose
tortious conduct contributed to causing the incident, injuries, or
damages notwithstanding whether any such defendant or defendants
have previously settled the claims with such plaintiff or
plaintiffs. However, any such defendant who has previously made a
good-faith settlement with the plaintiff or plaintiffs will not be
required to pay any amount assessed under the rules of joint and
several liability as such defendants inclusion in the assessment
required by subdivisions (1) and (2) of this section are simply for
the purpose of determining the negligence which is attributable to
any party that has not settled with the plaintiff or plaintiffs;
and
(2) Enter judgment against each defendant found to be
liable
negligent on the basis of the rules of joint and several liability,
except that if any defendant is thirty percent or less at fault,
then that defendant's liability shall be several and not joint and
he or she shall be liable only for the damages attributable to him
or her, except as otherwise provided in this section.
(b) Notwithstanding subdivision (2), subsection (a) of this
section, the rules of joint and several liability shall apply to:
(1) Any party who acted with the intention of inflicting
injury or damage;
(2) Any party who acted in concert with another person as part
of a common plan or design resulting in harm;
(3) Any party who negligently or willfully caused the unlawful
emission, disposal or spillage of a toxic or hazardous substance;
or
(4) Any party strictly liable for the manufacture and sale of
a defective product.
(c) Notwithstanding subdivision (2), subsection (a) of this
section, if a
claimant plaintiff or plaintiffs through good faith
efforts is unable to collect from a liable defendant, the
claimant
plaintiff or plaintiffs may, not later than six months after
judgment becomes final through lapse of time for appeal or through
exhaustion of appeal, whichever occurs later, move for reallocation
of any uncollectible amount among the other parties in the
litigation at the time the verdict is rendered.
The motion shall
include the following:
(1) Upon the filing of such a motion, the court shall
determine whether all or part of a defendant's proportionate share
of the verdict is uncollectible from that defendant and shall
reallocate such uncollectible amount among the other parties in the
litigation at the time the verdict is rendered, including a
claimant plaintiff or plaintiffs at fault according to their
percentages of fault.
Provided, That However, the court shall not
reallocate to any defendant an uncollectible amount greater than
that defendant's percentage of fault multiplied by such
uncollectible amount.
(2) If such a motion is filed, the parties may conduct
discovery on the issue of collectability prior to a hearing on such
motion.
(3) Any order regarding such motion shall be entered within
one hundred twenty days after the date of filing such a motion.
(4) A defendant's share of the obligation to a
claimant
plaintiff or plaintiffs may not be increased by reason of
reallocation under this subsection if:
(A) The percentage of fault of that defendant is equal to or
less than the
claimant's plaintiff or plaintiff's percentage of
fault; or
(B) The percentage of fault of that defendant is less than ten
percent.
(5) A party whose liability is reallocated is nonetheless
subject to contribution and to any continuing liability to the
claimant plaintiff or plaintiffs on the judgment.
(6) If any defendant's share of the obligation to a
claimant
plaintiff or plaintiffs is not increased by reason of the
application of subdivision (4) of this subsection, the amount of
that defendant's share of the reallocation shall be considered
uncollectible and shall be reallocated among all other parties who
are not subject to subdivision (4) of this subsection, including
the
claimant plaintiff or plaintiffs, in the same manner as
otherwise provided
in this subsection.
(d) Nothing in this section may be construed to affect, impair
or abrogate any right of indemnity or contribution arising out of
any contract or agreement or any right of indemnity otherwise
provided by law.
(e) Nothing in this section creates or recognizes, either
explicitly or impliedly, any new or different cause of action not
otherwise recognized by law.
(f) Nothing in this section may be construed to
affect, impair
or abrogate
the provisions of section seven, article twelve-a,
chapter twenty-nine of this code or section nine, article seven-b
of this chapter.
(g) This section applies only to causes of action that accrue
on or after July 1, 2005.
NOTE: This bill shall properly apportion the percentage of
fault to all defendants whose tortious conduct caused an incident,
injury or damages at issue in a case.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.