H. B. 2489
(By Delegates Frich, Frederick, Tansill,
Hamilton, Ellem, Trump and Stalnaker)
[Introduced February 17, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated
§33-11-4a
, relating
to
limiting third-party actions in unfair trade practices
suits against insurers, their employees, representatives and
agents
.
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 section, designated
§33-11-4a
, to read as
follows:
ARTICLE 11. UNFAIR TRADE PRACTICES.
§33-11-4a. Limitations of third-party causes of action.
The following provisions apply to all third-party claims and
actions against an insurer for a violation of this article:
(a) A cause of action by a third-party for a violation of this
article does not arise and a complaint may not be filed until the
underlying action or claim is resolved and all appeals are exhausted.
(b) A complaint alleging a third-party cause of action under
the provisions of this article shall contain specific factual
allegations setting forth the violations of this article which
constitute a general business practice. Any third-party complaint
failing to specifically allege each fact necessary to support a
prima facie cause of action shall be dismissed by the court.
(c) An alleged specific violation of this article may not be
admitted into evidence in more than three separate third-party
civil actions in order to establish a general business practice
proscribed by the provisions of this article. The burden of proof
is on the defendant to demonstrate to the court that the alleged
violation has been received into evidence in at least three other
actions.
(d) Neither an insurance company representative nor an agent
of an insurance company may be made a defendant in a third-party
action unless the representative or agent was directly involved in
an alleged violation or alleged violations of this article and
participated in or approved any act or failure to act which is a
violation of this article. The activities of any insurance company
representative or agent shall be specifically alleged in the
complaint or the insurance company representative or agent shall be
dismissed by the court as a party to the action.
(e) Unless reversed on appeal, a judgment in favor of a defendant in any civil action extinguishes all related claims and
actions for violation of the provisions of this article.
(f) The settlement of any claim or action may include
settlement of all potential third-party claims or actions which are
related thereto or which may arise therefrom. A release given in
consideration for settlement of a claim or action may include a
release of any and all persons who may be potentially liable for
violations of this article arising out of or related to the
underlying claim or action which was settled and released.
NOTE: The purpose of this bill is to limit third-party
actions in unfair trade practices suits against insurers, their
employees, representatives and agents.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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