Senate Bill No. 495
(By Senator Anderson)
____________
[Introduced March 22, 1993; referred to the Committee
on the Judiciary.]
____________
A BILL to amend article six, chapter fifty-six of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto two new sections, designated
sections forty-two and forty-three, all relating to
definitions; and recovery of punitive damages.
Be it enacted by the Legislature of West Virginia:
That article six, chapter fifty-six of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto two new sections, designated sections
forty-two and forty-three, all to read as follows:
ARTICLE 6. TRIAL.
§56-6-42. Definitions.
As used in section forty-three of this article unless the
context clearly require a different meaning:
"Clear and convincing evidence" means evidence that, when
weighed against evidence in opposition, will produce in the mind
of the trier of fact a firm conviction as to every finding withrespect to each essential element of the claim and a high
probability as to the correctness of each finding. Proof by
clear and convincing evidence requires a level of proof greater
than a preponderance of the evidence or the substantial weight of
the evidence, but less than beyond a reasonable doubt.
"Punitive damages" include exemplary and vindictive damages
and mean all damages, other than compensatory and nominal
damages, awarded against a defendant in a tort action to punish
the defendant and to deter the defendant from similar conduct in
the future.
"Tort action" means a civil action for damages for injury or
loss to person or property. "Tort action" does not include a
civil acting for damages for a claim based on a breach of
contract.
"Trier of fact" means the jury or, in a nonjury action, the
court.
§56-6-43. Recovery of punitive damages.
(a) A trier of fact shall not find a defendant liable for
punitive damages unless:
(1) The plaintiff establishes by clear and convincing
evidence that the defendant's acts or omissions for which
punitive damages are sought manifest a conscious, flagrant
indifference to the legal rights of the plaintiff and an actual
awareness by the defendant that the acts or omissions will result
in injury or loss to persons or property;
(2) Compensatory damages have been awarded to the plaintifffor the same acts or omissions of the defendant;
(3) The trier of fact finds that its award of compensatory
damages is not sufficient to punish the defendant for the acts or
omissions and to deter the defendant from like conduct in the
future; and
(4) The trier of fact finds that the defendant has not been,
or is not likely to be, adequately punished by means of criminal
penalties or civil fines imposed or assessed against the
defendant as the result of the same acts or omissions of the
defendant.
(b) In a tort action in which punitive damages are sought,
any party may request that the trial of the action be bifurcated.
In the first stage of a bifurcated trial, the trier of fact shall
determine liability for compensatory damages, and the amount of
compensatory damages, including nominal damages.
(c) If, during the first stage of a bifurcated trial, the
trier of fact determines that a defendant is liable for
compensatory damages, that same trier of fact shall determine, in
a second stage of the trial, whether punitive damages should be
awarded and in what amount.
(d) Any punitive damages awarded shall be solely for the
purpose of punishing the defendant for the acts or omissions for
which the defendant has been found liable for punitive damages
and of deterring the defendant from like conduct in the future.
In determining the amount of punitive damages, the trier of fact
may consider all evidence relevant to the punishment anddeterrence, including (1) the reprehensibly of the acts or
omissions of the defendant which made the defendant liable for
punitive damages, (2) the length of time the defendant continued
the acts or allowed the omissions, (3) whether the defendant
attempted to conceal or cover up the acts or omissions or the
harm caused thereby, (4) whether and how often the defendant
engaged in similar acts or allowed similar omissions in the past,
(5) whether the defendant profited from the acts or omissions,
(6) the defendant's income or net worth, and (7) any criminal
penalties or civil fines imposed or assessed against the
defendant as the result of the acts or omissions. Punitive
damages awarded should bear a reasonable relationship to the
compensatory damages awarded to the plaintiff.
(e) The total amount awarded against a defendant for
punitive damages shall not exceed three times the amount of
compensatory damages previously awarded by the same trier of
fact, or two hundred fifty thousand dollars, whichever is
greater. The jury shall not be advised of these limitations. If
a jury returns a verdict for punitive damages in excess of the
limitations, the trial court shall reduce the award so that it
will not exceed the limitations.
(f) No evidence that is relevant to the determination of
liability for punitive damages or their amount may be admitted in
the first stage of a bifurcated trial unless admitted for a
proper and relevant purpose other than the amount of punitive
damages. Evidence of other crimes, wrongs, or acts of adefendant otherwise admissible under Rule 404(b) of the West
Virginia rules of evidence shall not be admitted or considered in
determining the defendant's liability for, or the amount of,
punitive damages.
(g) Within the time for filing a motion for a new trial, a
defendant may file a post-trial motion requesting that the trial
court reduce the amount of the punitive damage award by any
amounts previously paid by the defendant in punitive damages
arising out of the same acts or omissions which are or
substantially the same as the acts of omissions for which the
defendant has been found liable for punitive damages. The burden
with respect to all issues relating to a reduction shall be on
the defendant and either party may introduce relevant evidence on
the motion. If the trial court sustains a motion, the trial
court shall reduce the jury award of punitive damages by the
amount found by the trial court to have been previously paid by
the defendant arising out of the same acts or omissions and enter
judgment accordingly. If a defendant fails to establish
entitlement to a reduction under the provisions of this
subsection, or if the trial court finds that the defendant,
although otherwise entitled to a reduction, unreasonably
continued the acts or omissions after acquiring actual knowledge
of the dangerous nature of the acts or omissions, the trial court
shall disallow the reduction.
(h) Punitive damages shall not be awarded on a claim for
breach of contract.
(i) Punitive damages shall not be assessed against a
principal or employer for the act of an agent or employee unless
the principal or employer commanded, authorized, ratified or
knowingly condoned the conduct in question.
(j) Punitive damages shall not be assessed against an
association or partnership for the acts of a member or partner
unless the association or partnership commanded, authorized,
ratified or knowingly condoned the conduct in question.
(k) Nothing contained in this section grants or creates a
cause of action or right to recover punitive damages.
(l) This section applies to all trials and retrials of all
tort actions for punitive damages commenced on or after the first
day of September, one thousand nine hundred ninety-three.
(m) This section supersedes, invalidates, and repeals all
laws or parts of law which conflict with its provisions.
NOTE: The purpose of this bill is to limit the amount of
punitive damages that may be awarded to plaintiffs.
§§56-6-42 and 43 are new; therefore, strike-throughs and
underscoring have been omitted.