Senate Bill No. 535
(By Senator Rowe)
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[Introduced February 7, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend article four, chapter fifty-six of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section seventy-two,
relating to creating a notice legal action for injury and
contract claims to toll limitation periods for one hundred
eighty days without the necessity of naming defendants
responsible for alleged damages.
Be it enacted by the Legislature of West Virginia:
That article four, chapter fifty-six of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
seventy-two, to read as follows:
ARTICLE 4. RULES AND PLEADING.
§56-4-72. Notice of a bona fide claim.
(a) A person or entity seeking damages for personal injury or property or contract damages may commence a notice legal action by
filing a notice of bona fide claim for damages stating facts giving
rise to the claim and the damages sought for the claim. Persons
and entities alleged to be responsible for those damages may be
named or not named in the notice pleading. No service of the
notice and no response to the notice by any person or entity is
required.
(b) If any period of limitation or repose has not expired as
of the time of the filing of the notice, the running of the period
shall be tolled for one hundred eighty days from the date of the
filing of the notice of bona fide claim. The notice legal action
may not extend any period of limitation or repose which has expired
before the filing of the notice of bona fide claim for damages.
(c) A complaint naming one or more defendants may be filed in
the notice legal action or in other legal actions within the one
hundred eighty-day period. Only after a complaint naming one or
more defendants has been filed may any court proceedings be
instituted including the conduct of civil discovery proceedings.
(d) If a complaint, or complaints, naming one or several
defendants is filed but not part of the notice legal action, the
running of the period of limitation or repose for such other
actions shall be tolled for the term of the one hundred eighty-day
period of the notice legal action.
(e) If no complaint is filed in the notice of legal action, on
the one hundred eighty-first day after the notice is filed, the notice legal action shall be automatically dismissed from the
docket of the court, without prejudice to the plaintiff who filed
the notice of bona fide claim for damages, with no order of the
court or special action of the clerk of the court required.
NOTE: The purpose of this bill is to create a civil notice
legal action to toll the running of limitation periods without the
necessity of naming all defendants alleged to be responsible for
the plaintiff's damages. The limitation period is tolled for one
hundred eighty days during which a legal action may be filed naming
defendants.
The bill is intended to prevent parties not responsible for
damages from being named needlessly in a legal action filed just
before a statutory limitation period is to expire. Currently,
plaintiffs name multiple defendants in law suits to be certain all
possible responsible parties are included before a limitation
period expires, out of concern that a responsible party named late
would escape liability and the plaintiff's claim against other
parties would fail.
The bill allows for settlements by insurance companies to be
completed at or near the expiration of a limitation period without
their insureds being unnecessarily named as defendants in a law
suit. The current practice of agreed extensions of time to file
law suits create confusion and conflict with the insureds and other
insurance carriers.
The bill would save the insurance company the cost of hiring
a defense attorney for a legal action after a complaint is filed
naming its insured as a defendant.
§56-4-72
is new; therefore, strike-throughs and underscoring
have been omitted.
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