H. B. 2626
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced February 3, 1999; referred to the
Committee on the Judiciary.]
A BILL to repeal sections twelve and thirteen, article seven,
chapter fifty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
chapter fifty-five of said code by adding thereto a new
article, designated article seven-e, relating to reforming
the civil justice system by enacting "The Fair Share of
Responsibility Act of 1999"; stating legislative findings
and declarations of purposes; short title; defining terms;
predicating actions for damages upon principles of
comparative fault; establishing the comparative fault
standard; abolishing joint liability; describing how to
consider the fault of nonparties; describing how to consider
the fault of, and the amounts paid by, settling parties;
preserving defenses and immunities; providing for the use of
special interrogatories; establishing responsibility for the acts of an agent or servant; precluding recovery by a
plaintiff injured while involved in a felony criminal act;
exempting certain actions; providing for repeal of
conflicting laws; establishing an effective date; and
providing a severability clause.
Be it enacted by the Legislature of West Virginia:
That sections twelve and thirteen, article seven, chapter
fifty-five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be repealed; and that chapter
fifty-five of said code be amended by adding thereto a new
article, designated article seven-e, to read as follows:
ARTICLE 7E. COMPARATIVE FAULT.
§55-7E-1. Legislative findings; declaration of purposes; short
title.
(a) The Legislature finds and declares that the civil
liability law of the state should be reformed in order to curtail
or eliminate the social and economic problems associated with:
(1) A common law that is unjust and unfair in making one
defendant jointly liable for the total damages assessed against
multiple defendants even though that one defendant may have been
as little as one percent at fault in causing plaintiff's
injuries; and (2) a common law which, in imposing joint
liability, often causes municipalities, volunteer groups,
nonprofit organizations, property owners, and large and small businesses to be brought into litigation despite the fact that
their conduct had little or nothing to do with the accident or
transaction giving rise to the lawsuit;
(b) The Legislature further finds and declares that the
foregoing civil liability law of the state as made or allowed by
the courts, rather than having been enacted by the Legislature,
has resulted, or may result, in unfair allocations of liability
that: (1) Cause defendants, including boards of education and
other governmental agencies, to settle cases out of court for
fear of being subject to total payment of large verdicts for
which they are only partially liable, in order to avoid the high
costs, inconvenience, and uncertainty of litigation; (2)
jeopardize the financial well-being and security of many
individuals, small businesses, and even entire industries, and
adversely affect government and taxpayers; (3) undermine the
ability of companies in West Virginia to compete nationally and
internationally; (4) cause citizens and small businesses to live
in fear of lawsuits against them wherein they may be bankrupted
or driven out of business by legal fees and expenses in defending
them and by settlements agreed to because of the threat of
trials; and (5) add to the high cost of liability insurance,
making it difficult for individuals, producers, consumers,
volunteers, and nonprofit organizations to protect themselves
with any degree of confidence at a reasonable cost.
(c) The purpose of this act, therefore, is to restore
rationality, certainty and fairness to the civil justice system
in order to correct the clear social and economic problems
associated with our current system, and shall be known as "The
Fair Share of Responsibility Act of 1999".
§55-7E-2. Definitions.
As used in this article:
(a) "Comparative fault" means the degree to which the fault
of a person was a proximate cause of an alleged personal injury
or death or damage to property, expressed as a percentage.
(b) "Compensatory damages" means money awarded to compensate
a plaintiff for economic and noneconomic loss.
(c) "Damage" or "damages" means pain, suffering,
inconvenience, physical impairment, disfigurement, mental
anguish, emotional distress, loss of enjoyment of life, loss of
society and companionship, loss of consortium, injury to
reputation, humiliation, loss of earnings and earning capacity,
loss of income, medical expenses and medical care, rehabilitation
services, custodial care, wrongful death, burial costs, loss of
use of property, costs of repair or replacement of property,
costs of obtaining substitute domestic services, loss of
employment, loss of business or employment opportunities, lost
profits, and other such losses to the extent that recovery for
such is allowable under any present, applicable state law.
(d) "Defendant" means, for purposes of determining an
obligation to pay money to another under this chapter, any person
against whom a claim is asserted by a plaintiff.
(e) "Fault" means an act or omission of a person, which is
a proximate cause of injury or death to another person or
persons, damage to property, or economic injury, including, but
not limited to, negligence, malpractice, medical professional
liability, strict product liability, absolute liability,
liability under section two, article four, chapter twenty-three
of this code, or assumption of the risk.
(f) "Person" means any individual, corporation, company,
association, firm, partnership, society, joint stock company, or
other entity, including any governmental entity or unincorporated
association.
(g) "Plaintiff" means, for purposes of determining a right
to recover under this article, any person asserting a claim.
§55-7E-3. Comparative fault standard established.
In any action for damages, recovery shall be predicated upon
principles of comparative fault and the liability of each person,
including plaintiffs, defendants, and nonparties who caused the
damages shall be allocated to each such person in direct
proportion to that person's percentage of fault.
The total of the percentages of comparative fault allocated
by the trier of fact with respect to a particular incident or injury must equal either zero percent or one hundred percent.
§55-7E-4. Several liability.
In any action for damages, the liability of each defendant
for compensatory damages shall be several only and shall not be
joint. Each defendant shall be liable only for the amount of
compensatory damages allocated to that defendant in direct
proportion to that defendant's percentage of fault and a separate
judgment shall be rendered against the defendant for that amount.
To determine the amount of judgment to be entered against each
defendant, the court, with regard to each defendant, shall
multiply the total amount of compensatory damages recoverable by
the plaintiff by the percentage of each defendant's fault and
that amount shall be the maximum recoverable against said
defendant.
§55-7E-5. Fault of nonparties.
(a) In assessing percentages of fault, the trier of fact
shall consider the fault of all persons who contributed to the
alleged damages regardless of whether such person was or could
have been named as a party to the suit. Such fault shall include
the fault imputed or attributed to a person by operation of law,
if any. Fault of a nonparty may be considered if the plaintiff
entered into a settlement agreement with the nonparty or if a
defending party gives notice no later than sixty days before the
date of trial that a nonparty was wholly or partially at fault. The notice shall be given by filing a pleading or discovery
response in the action designating such nonparty and setting
forth such nonparty's name and last-known address, or the best
identification of such nonparty which is possible under the
circumstances, together with a brief statement of the basis for
believing such nonparty to be at fault. In all instances where
a nonparty is assessed a percentage of fault, any recovery by a
plaintiff shall be reduced in proportion to the percentage of
fault chargeable to such nonparty. Where a plaintiff has settled
with a party or nonparty before verdict, that plaintiff's
recovery will be reduced by the amount of the settlement or in
proportion to the percentage of fault assigned to the settling
party or nonparty, whichever is greater. The plaintiff shall
promptly and fully inform all other persons against whom
liability is asserted of the terms of any such settlement.
(b) Nothing in this article is meant to eliminate or
diminish any defenses or immunities which exist as of the
effective date of this article, except as expressly noted herein.
(c) Assessments of percentages of fault for nonparties are
used only as a vehicle for accurately determining the fault of
named parties. Where fault is assessed against nonparties,
findings of such fault shall not subject any nonparty to
liability in that or any other action, or be introduced as
evidence of liability or for any other purpose in any other action.
(d) In all actions involving fault of more than one person,
unless otherwise agreed by all parties to the action, the court
shall instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings, indicating the percentage
of the total fault that is allocated to each party and nonparty
pursuant to the provisions of this article. For this purpose,
the court may determine that two or more persons are to be
treated as a single person.
§55-7E-6. Imputed fault.
Nothing in this article may be construed as precluding a
person from being held responsible for the portion of comparative
fault assessed against another person who was acting as an agent
or servant of such person, or if the fault of the other person is
otherwise imputed or attributed to such person by statute or
common law.
§55-7E-7. Plaintiff involved in felony criminal act.
In any civil action, a defendant is not liable for damages
that the plaintiff suffers as a result of the negligence or gross
negligence of a defendant while the plaintiff is attempting to
commit, committing, or fleeing from the commission of a felony
criminal act.
§55-7E-8. Limitations.
Nothing in this article may be construed to create a cause of action. Nothing in this article may be construed, in any way,
to alter the immunity of any person as established by statute or
common law.
§55-7E-9. Article not applicable to certain actions.
This article is not applicable to:
(a) A defendant whose conduct constitutes driving a vehicle
under the influence of alcohol, a controlled substance, or any
other drug, or any combination thereof, as described in section
two, article five, chapter seventeen-c of this code and is the
proximate cause of the damages suffered by the plaintiff;
(b) A defendant whose actions constitute criminal conduct
which is the proximate cause of the damages suffered by the
plaintiff; and
(c) A defendant whose conduct constitutes an illegal
disposal of hazardous waste, as described in section three,
article eighteen, chapter twenty-two of this code and is the
proximate cause of the damages suffered by the plaintiff.
§55-7E-10. Conflicting laws repealed.
This article supersedes, invalidates, and repeals all other
state laws which conflict with its provisions.
§55-7E-11. Applicability.
This article applies to all causes of action arising on or
after the effective date of its enactment.
§55-7E-12. Severability clause.
The provisions of this article, and each section,
subsection, subdivision, paragraph, and subparagraph thereof
shall be severable from the provisions of each other
subparagraph, paragraph, subdivision, subsection, section,
article, or chapter of this code so that if any provision of this
article be held void, the remaining provisions of this act and
this code shall remain valid.
NOTE: The purpose of this bill is to enact "The Fair Share
of Responsibility Act of 1999". It would abolish the principle
of joint and several liability, by which a person who is only one
percent at fault may be held liable for one hundred percent of
the damages, and establish instead the principle of comparative
fault, by which each defendant is liable for damages according to
the percentage of fault attributed by a judge or jury.
This article is new; therefore, strike-throughs and
underscoring have been omitted.