Senate Bill No. 294
(By Senators Carmichael, Jenkins and M. Hall)
[Introduced January 4, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §55-7-27 and §55-7-28, all relating to actions for tort liability; providing reduction of judgment awards in tort liability actions of certain collateral source payments made or to be made to the plaintiff; defining the terms "collateral source" and "collateral source payments"; exceptions; and providing post-verdict determination of reduction of compensatory damages.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §55-7-27 and §55-7-28, all to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-27. Reduction in compensatory damages for collateral source payments.
Notwithstanding any other provision of this code, in all tort actions, regardless of the theory of liability under which they are commenced, the total amount of compensatory damages awarded to a plaintiff under an action is reduced, in accordance with section twenty-eight of this article, by any collateral source payments made or to be made to the plaintiff, or plaintiff’s decedent, except insurance for which the plaintiff, spouse of the plaintiff, or parent of the plaintiff, or plaintiff’s decedent, has paid a premium, insurance that is subject to a right of subrogation, workers’ compensation benefits that are subject to a right of subrogation, or insurance that has any other obligation of repayment: Provided, That the provisions of this section do not apply in those actions where a defendant’s actions constitute criminal conduct which is the proximate cause of the damages suffered by the plaintiff or plaintiff’s decedent.
As used in this section:
(a) "Collateral source" means: (1) The United States Social Security Act, as amended; (2) any state or federal disability, workers’ compensation, or other act designed to provide income replacement, medical, or other benefits; (3) any accident, health or sickness, income or wage replacement insurance, income disability insurance, casualty or property insurance (including automobile and homeowners’ insurance) or any other insurance except life insurance; (4) any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services or provide similar benefits; or (5) any contractual or voluntary wage continuation plan provided by an employer or otherwise, or any other system intended to provide wages during a period of disability.
(b) "Collateral source payments" means money paid or payable by collateral sources for losses or expenses, including, but not limited to, property damage, wage loss, medical costs, rehabilitation costs, services, and other costs incurred by or on behalf of a plaintiff for which that plaintiff is claiming recovery through a tort action commenced in any of the courts in this state.
§55-7-28. Postverdict determination of reduction in compensatory damages.
The reduction in compensatory damages required under section twenty-seven of this article shall be determined by the court after the verdict and before judgment is entered. Reduction may be made only if the collateral source payments are compensation for the same damages for which recovery is sought in the action. A plaintiff who has received or is to receive collateral source payments may introduce evidence before the court, but not at trial, of any of the following: (a) Any amount that the plaintiff has paid or contributed to secure his or her right to any collateral source payments; (b) that any recovery by the plaintiff is subject to a lien by a collateral source; (c) that a provider of any collateral source payments has a statutory right of recovery against the plaintiff for reimbursement of such payments; or (d) that the provider of any collateral source payments has a right of subrogation to the rights of the plaintiff.
After considering the evidence of a collateral source introduced by any party, the court shall make a determination as to the amount by which a plaintiff’s compensatory damages will be reduced by any collateral source payments.
NOTE: The purpose of this bill is to provide that judgment awards in tort actions be reduced by the amount of certain collateral source benefits received by the claimant or to which the claimant is entitled. Actions where the defendant’s actions constitute criminal conduct are exempted.
These sections are new; therefore, strike-throughs and underscoring have been omitted.