H. B. 2811
(By Mr. Speaker, Mr. Kiss and Delegates
Michael, Kominar, Amores and Trump)
[Introduced January 31, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend article seven, chapter fifty-five of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
twenty-one, relating to collateral source payments and the
reduction of damages awards by the amount persons have already
received or will receive from collateral sources as
compensation for their injuries.
Be it enacted by the Legislature of West Virginia:
That article seven, chapter fifty-five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
twenty-one, to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-21. Collateral sources; collateral source payments;
reduction in compensatory damages for collateral
source payments; post verdict determination of
reduction in compensatory
damages.
(a) As used in this section, "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) As used in this section, "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.
(c) 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 shall be reduced, in
accordance with subsections (d), (e) and (f) of this section, by
any collateral source payments made or to be made to the plaintiff,
except insurance for which the plaintiff, spouse of the plaintiff
or parent of plaintiff, 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 or repayment.
(d) The reduction in compensatory damages required by this
section 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. After considering the evidence of 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 applicable collateral
source payment.
(e) At trial, no evidence shall be admitted as to the amount
of any charges, payments or losses for which a plaintiff: (1) Has
received payment from a collateral source or the obligation which
has been assumed by a collateral source, or (2) is, or with
reasonable certainty will be, eligible to receive payment from a
collateral source or the obligation for which will, with reasonable
certainty, be assumed by a collateral source.
(f) 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: (1) Any amount which the plaintiff
has paid or contributed to secure his right to any collateral
source payments; (2) that any recovery by the plaintiff is subject
to a lien by a collateral source; (3) that a provider of collateral
source payments has a statutory right of recovery against plaintiff
for reimbursement of the payments; or (4) that the provider of the
collateral source payments has a right of subornation to the rights
of the plaintiff.
(g) This section supersedes, invalidates and repeals all other
state laws that conflict with its provisions.
(h) This section applies to all causes of action arising on or
after the effective date of its enactment.
(i) The provisions of this section are 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 section be held void, the remaining provisions of
this act, article, section and this code shall remain valid.
NOTE: The purpose of this bill is to require that certain
collateral source payments received by plaintiff be deducted from
any compensatory damages received provided that collateral payments
are for the same damages for which recovery is sought in the
action.
This section is new; therefore, strike-throughs and
underscoring have been omitted.