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:
§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.