Introduced Version
Senate Bill 587 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 587
(By Senators Palumbo, Jenkins, McCabe, Prezioso and Stollings)
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[Introduced March 21, 2013; 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 apportionment of damages in
causes of action involving tortious conduct; adopting several
liability in tortious actions unless certain exceptions apply;
increasing period for a motion for reallocation; removing
certain limits on reallocation; and setting a date after which
the accrual of a cause of action will use the changes made to
this section.
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, 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 and the
proportionate fault of each of the parties in the litigation at the
time the verdict is rendered; and
(2) Enter judgment against each defendant found to be liable
on the basis of the rules of joint and several and not joint
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 through good faith efforts is unable to
collect from a liable defendant, the claimant may, not later than
six months one year 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.
(1) Upon the filing of such a the 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 the uncollectible amount among the other parties in
the litigation at the time the verdict is rendered, including a
claimant at fault according to their percentages of fault:
Provided, That the court shall may not reallocate to any defendant
an uncollectible amount greater than that defendant's percentage of
fault multiplied by such the uncollectible amount.
(2) If such a the motion is filed, the parties may conduct
discovery on the issue of collectability prior to a hearing on such
the motion.
(3) Any order regarding such the motion shall be entered
within one hundred twenty days after the date of filing such a the
motion.
(4) A defendant's share of the obligation to a claimant 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 percentage of fault; or
(B) The percentage of fault of that defendant is less than ten
percent.
(5) (4) A party whose liability is reallocated is nonetheless
subject to contribution and to any continuing liability to the
claimant on the judgment.
(6) If any defendant's share of the obligation to a claimant
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, in the
same manner as otherwise provided this subsection.
(d) Nothing in This section may be construed to does not
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 does not
create or recognize, 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 does not
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: Provided, That the amendments to this
section adopted during the 2013 regular legislative session apply
only to causes of action that accrue on or after July 1, 2013.
NOTE: The purpose of this bill is to adopt several liability
with respect to tortious conduct and to increase the ability of
reallocation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.