Senate Bill No. 495

(By Senator Anderson)

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[Introduced March 22, 1993; referred to the Committee
on the Judiciary.]

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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.