Senate Bill No. 113
(By Senators M. Hall, Jenkins, Barnes, Blair and Carmichael)
[Introduced February 13, 2013; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended,
adding thereto a new chapter, designated §55A-1-1, §55A-1-2,
§55A-1-3, §55A-1-4, §55A-2-1, §55A-2-2, §55A-2-3, §55A-2-4,
§55A-2-5, §55A-2-6, §55A-2-7, §55A-2-8, §55A-2-9, §55A-3-1,
§55A-3-2, §55A-4-1, §55A-4-2,
§55A-4-3, §55A-4-4, §55A-4-5,
§55A-5-1, §55A-5-2, §55A-5-3, §55A-5-4, §55A-5-5,
§55A-5-6, §55A-5-7, §55A-5-8,
§55A-6-1, §55A-6-2, §55A-6-3,
§55A-7-1, §55A-7-2, §55A-7-3, §55A-7-4,
§55A-7-5, §55A-7-6, §55A-7-7, §55A-7-8, §55A-8-1, §55A-8-2,
§55A-9-1, §55A-9-2, §55A-10-1, §55A-10-2, §55A-10-3,
§55A-11-1, §55A-11-2, §55A-11-3, §55A-11-4, §55A-11-5,
§55A-11-6, §55A-11-7, §55A-11-8, §55A-11-9, §55A-11-10,
§55A-11-11, §55A-11-12, §55A-12-1, §55A-12-2, §55A-12-3,
§55A-12-4, §55A-12-5 and §55A-12-6, all relating to reforming the civil justice system; limiting the amount of recoverable
damages; authorizing a new court to be known as the
Intermediate Court of Appeals; requiring the court to be
operational by January 1, 2015; establishing northern and
southern districts; providing three judges for each district;
providing a short title; stating legislative findings;
excepting certain actions; defining terms; establishing
qualifications for judges; establishing jurisdiction of the
court; providing for review; providing that Supreme Court will
either keep the appeal or transfer it to the Intermediate
Court; providing that appeals in certain administrative cases
are discretionary; authorizing appeals from Intermediate Court
to the Supreme Court; authorizing Governor to make initial
appointments by July 1, 2014; creating staggered terms;
providing for elections for ten-year terms after initial
appointments; authorizing a Chief Judge of the Intermediate
Court; authorizing staff for the court and the judges;
providing for compensation and expenses of judges and staff;
providing for temporary assignment of circuit court judges;
authorizing the Supreme Court to provide the facilities,
furniture, fixtures and equipment for the Intermediate Court;
establishing precedential effect of Intermediate Court orders
and decisions; providing that the budget of the Intermediate Court will be part of the Supreme Court budget; prohibiting
medical monitoring relief absent manifest present injury or
disease caused by a defendant; providing for venue reform;
relating to the application of the doctrine of forum non
conveniens when civil actions have both a resident and
nonresident plaintiff; providing for parties to make a motion
that a case would more properly be heard in a forum outside
this state; providing for statute of limitations expiring in
the alternative forum while the claim is pending in this
state; providing for proper dismissal of an action for forum
non conveniens purposes; providing for application to class
representatives; requiring courts granting motions to stay or
dismissal actions for forum non conveniens purposes to set
forth specific findings of fact and conclusions of law;
providing standards to determine the competency of expert
witnesses; providing standards for opinion testimony by lay
witnesses; providing standards of admission for expert witness
testimony; requiring a basis for expert witness testimony;
barring certain types of expert witness testimony; mandating
pretrial hearings and disclosures of expert testimony;
providing for the interpretation of the competency of expert
witnesses; establishing a standard of review; establishing
when punitive damages may be recovered; providing maximum amounts which may be awarded on multiple punitive damages
awards for the same course of conduct; providing for the
bifurcation of a civil action in which punitive damages are
sought when requested by a defendant; stating the conditions
under which punitive damages may be assessed against a
principal or employer for an act of an agent or employee and
against an association, limited liability entity or
partnership for the acts of a member or partner; predicating
actions for damages upon principles of comparative fault;
establishing the comparative fault standard; abolishing joint
liability and implementing several liability; establishing how
to consider the fault of nonparties; establishing how to
consider the fault of, and the amounts paid by, settling
parties; providing for the use of special interrogatories;
clarifying fault may be imputed to another person who was
acting as an agent or servant of another; allowing the
assessment of a percentage of fault for failing to take
reasonable precautionary measures that were available;
precluding the allocation of fault to a person such as a
seller, distributor or installer on a strict product liability
theory where that person did not contribute to the alleged
defect; providing for the burden of proof and limitations;
providing for immunity of premises owners from civil liability in certain circumstances; reducing damage awards by collateral
source payments; providing how damage reductions shall be
determined; stating the effects of such determinations upon
the trial; providing a "losers pay" provision; providing a
statute of repose; establishing a general eighteen-year
warranty for products' liability actions and an exception for
cases where there is an express warranty for more than
eighteen years; providing that noneconomic damages are
recoverable in actions where damages were authorized at the
time this bill became law; providing maximum amounts that may
be recovered for noneconomic losses based on physical injury
and nonphysical injury; providing for costs by a nonprevailing
party; establishing a procedure for recovery of attorney's
fees; providing courts may take judicial notice of the usual
and customary attorney's fees; providing for the liability of
attorneys; providing for the applicability of other law;
requiring the West Virginia Supreme Court adopt rules to
implement this chapter; providing for repeal of conflicting
laws; providing for applicability and severability of this
chapter; clarifying no additional cause of action is created
by this chapter; and providing this chapter becomes effective
immediately upon passage by the Legislature and approval by
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto
a new chapter, designated §55A-1-1, §55A-1-2,
§55A-1-3, §55A-1-4, §55A-2-1, §55A-2-2, §55A-2-3, §55A-2-4,
§55A-2-5, §55A-2-6, §55A-2-7, §55A-2-8, §55A-2-9, §55A-3-1,
§55A-3-2, §55A-4-1, §55A-4-2, §55A-4-3, §55A-4-4, §55A-4-5,
§55A-4-6, §55A-5-1, §55A-5-2, §55A-5-3, §55A-5-4, §55A-5-5,
§55A-5-6, §55A-5-7, §55A-5-8, §55A-6-1, §55A-6-2, §55A-6-3,
§55A-6-4, §55A-6-5, §55A-7-1, §55A-7-2, §55A-7-3, §55A-7-4,
§55A-7-5, §55A-7-6, §55A-7-7, §55A-7-8, §55A-8-1, §55A-8-2,
§55A-9-1, §55A-9-2, §55A-10-1, §55A-10-2, §55A-10-3, §55A-11-1,
§55A-11-2, §55A-11-3, §55A-11-4, §55A-11-5, §55A-11-6, §55A-11-7,
§55A-11-8, §55A-11-9, §55A-11-10, §55A-11-11, §55A-11-12,
§55A-12-1, §55A-12-2, §55A-12-3, §55A-12-4, §55A-12-5 and
to read as follows:
CHAPTER 55A. CIVIL JUSTICE REFORM.
ARTICLE 1. SHORT TITLE; LEGISLATIVE FINDINGS AND DECLARATION OF
PURPOSES; CHAPTER NOT APPLICABLE TO CERTAIN
ACTIONS; AND DEFINITIONS.
§55A-1-1. Short title.
This chapter shall be known as and may be cited as the "Civil
Justice Reform Act of 2013."
§55A-1-2. Legislative findings and declaration of purposes.
(a) The Legislature finds and declares that:
(1) The citizens of this state are entitled to a fair civil
justice system which provides adequate and reasonable compensation
for those persons suffering injury under the state's civil
(2) It is the duty and responsibility of the Legislature to
also ensure that the state's civil liability law is not abusive or
unfair to those it is supposed to serve;
(3) In recent years, West Virginia's civil liability system
has regularly ranked as one of the worst in the nation for legal
(4) Since 2007, West Virginia has been home to several of the
nation's largest lawsuit verdicts, despite the state's relatively
(5) The current civil liability law of the state has actually
resulted, and may continue to result, in excessive, unpredictable,
and often arbitrary damage awards and unfair allocations of
(A) Adversely affect the ability of the state to retain jobs
and attract new employers;
(B) Cause the withdrawal of products, producers, services, and
service providers from the marketplace and result in excessive liability costs that are passed on to consumers through higher
(C) Cause defendants, including boards of education and other
governmental agencies, to settle cases out of fear of large
verdicts rendered pursuant to the civil liability laws and in order
to avoid the high costs, inconvenience and uncertainty of
(D) Jeopardize the financial well-being and security of many
individuals, small businesses, and even entire industries, and
adversely affect government and taxpayers;
(E) Undermine the ability of companies in West Virginia to
compete nationally and internationally, and decrease the number of
jobs and the amount of production capital in the state's economy;
(F) Cause citizens and small businesses to live in fear of
lawsuits against them where they may be bankrupted or driven out of
business by legal fees and expenses in defending them and by
exorbitant settlements extorted by threat of trials that have taken
on the characteristics of a lottery; and
(G) 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.
(b) The Legislature, therefore, declares it to be in the best interests of its citizens to reform the civil liability law of the
state in order to curtail or eliminate clear social and economic
(1) Deny citizens a meaningful right of appeal;
(2) Allow plaintiffs to recover damages in cases where there
is no actual proof of injury;
(3) Allow out-of-state plaintiffs to take advantage of West
Virginia courts when a more convenient venue exists elsewhere;
(4) Allow the admission of expert testimony from witnesses who
are not properly qualified as experts;
(5) Allow excessive amounts to be awarded in punitive damages;
(6) Can unjustly and unfairly hold 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;
(7) Deny any reduction in damage awards for compensatory
payments received from collateral sources, such as workers'
compensation and employer disability programs;
(8) Allow lawsuits to be brought for a claimed defective
product made twenty, thirty or more years ago;
(9) Allow excessive amounts to be awarded for noneconomic
losses based on physical injury and actions other than those based
on physical injury; and
(10) Require prevailing parties to bear substantial legal fees
defending against meritless filings.
(c) The Legislature further finds and declares that there
exists, for the foregoing reasons, clear social and economic
problems associated with our civil justice system and a need to
correct those problems by restoring rationality, certainty, and
fairness to the civil justice system through the enactment of the
Civil Justice Reform Act of 2013.
§55A-1-3. Chapter not applicable to certain actions.
This chapter is not applicable to:
(1) Those causes of action where a defendant's 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;
(2) Those causes of action where a defendant's actions
constitute criminal conduct which is the proximate cause of the
damages suffered by the plaintiff;
(3) Those causes of action where a defendant's 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.
As used in this chapter:
"Abusive civil action" means a civil action that a reasonable
person would conclude is a misuse of the civil justice process.
"Actual malice" means specific intent to cause personal
injury, death, or damage to the property or the reputation of
"Agent" means a person who is authorized to act for another
through employment by contract or apparent authority.
"Claim" means a request for monetary damages filed in a civil
action, other than a request for reimbursement of attorney's fees
or other costs of litigation in a civil action, if the request is
(A) Damages for alleged personal injury, property damage,
breach of contract, or death, regardless of the legal theories or
statutes on the basis of which recovery is sought; or
(B) Damages other than for alleged personal injury, property
damage, or death allegedly resulting from any tortious conduct,
regardless of the legal theories or statutes on the basis of which
recovery is sought.
"Clear and convincing evidence" means that the evidence
presented by a party during the trial is more highly probable to be true than not and the jury or judge has a firm belief or conviction
the evidence proves the issue for which it is asserted.
"Collateral source" means the United States Social Security
Act; any state or federal disability, workers' compensation, or
other act designed to provide income replacement, medical, or other
benefits; 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; 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 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.
"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.
"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.
"Compensatory damages" means money awarded to compensate a
plaintiff for economic and noneconomic loss.
"Conscious, reckless, and outrageous indifference to the
health, safety, and welfare of others" means an act or omission
which when viewed objectively from the standpoint of the defendant
at the time of its occurrence involves an extreme degree of risk,
considering the probability and magnitude of the potential harm to
others, and of which the defendant has actual, subjective awareness
of the risk involved, but nevertheless proceeds with conscious
disregard of the rights, safety or welfare of others.
"Damage" or "damages" means all claims under common law or
statutory and equitable causes of action for actual damages,
including economic and noneconomic damages, and additional damages,
including knowing damages, punitive damages, treble damages,
penalties, prejudgment interest, postjudgment interest, attorney's
fees, litigation costs, costs of court, and all other damages of
"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 including a counterdefendant,
cross-defendant or third-party defendant.
"Durable good" means any product, or any component of any such product, which:
(A) Either has a normal life expectancy of three or more
years, or is of a character subject to allowance for depreciation
under the Internal Revenue Code of 1986;
(B) Is either used in a trade or business, held for the
production of income, or sold or donated to a governmental or
private entity for the production of goods, training, demonstration
or any other similar purpose; and
(C) Is used in a workplace, and is alleged to have caused harm
that is covered under chapter twenty-three of this code.
"Economic loss" means objectively verifiable monetary losses,
such as medical expenses, loss of earnings and earning capacity,
cost of replacement services, loss of income stream due to death,
burial costs, loss of business or employment opportunities, lost
profits, and loss due to property destruction or damage, to the
extent recovery for that monetary loss is allowed under any present
applicable state law.
"Employer" means a person who controls and directs a worker
under an express or implied contract of employment and pays, or is
obligated to pay, him or her salary or wages in compensation.
Employer includes, but is not limited to, a parent, subsidiary,
affiliate, division, or department of the employer. If the
employer is an individual, the individual shall be considered an employer under this chapter only if the subject of the tort action
is related to the individual's capacity as an employer.
"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
"Financial interest" means a financial interest held by an
attorney under an agreement between the attorney and a plaintiff or
defendant in which the amount or the payment of the fee for the
attorney's legal services is contingent wholly or partly on the
outcome of the civil action.
"Large employer" means an employer who employs more than
twenty-five persons on a full-time permanent basis, or its
equivalent, or has annual revenues of more than $5 million.
"Legal resident" means an individual who is a resident of West
Virginia at the time the cause of action arose or at the time the
action is filed without regard to the individual's country of
citizenship or national origin. The term does not include an
individual who adopts a residence in this state in bad faith for
purposes of avoiding the application of this chapter.
"Natural person" means a human being that has the capacity for
rights and duties.
"Noneconomic loss" means subjective, nonmonetary losses, such
as pain, suffering, inconvenience, mental anguish, emotional
distress, loss of enjoyment of life, loss of society and
companionship, loss of consortium, injury to reputation, and
humiliation, to the extent recovery for any nonmonetary loss is
allowed under any present, applicable state law.
"Person" means any individual, corporation, trust, company,
incorporated or unincorporated association, firm, partnership,
society, joint stock company, business entity, and any agency, unit
or instrumentality of federal, state or local government.
"Physical injury" means an actual injury to the body
proximately caused by the act complained of and does not include
physical symptoms of the mental anguish or emotional distress for
which recovery is sought when the symptoms are caused by, rather
than the cause of, the pain, distress, or other mental suffering.
"Plaintiff" means, for purposes of determining a right to
recover under this chapter, any person asserting a claim.
"Product" means any object, substance, mixture, or raw
material in a gaseous, liquid, or solid state: (A) Which is capable
of delivery itself or as an assembled whole, in a mixed or combined
state, or as a component part or ingredient; (B) which is produced for introduction into trade or commerce; (C) which has intrinsic
economic value; and (D) which is intended for sale or lease for
commercial or personal use.
The term "product" does not include: (A) Human tissue, human
organs, human blood, and human blood products; (B) electricity,
water delivered by a utility, natural gas or steam; or (C)
intellectual property, including computer software.
"Product liability action" means a civil action brought
against any defendant, including defendants who did not manufacture
or sell a product, on any theory for damage caused by a product.
ARTICLE 2. THE WEST VIRGINIA INTERMEDIATE COURT OF APPEALS.
§55A-2-1. The West Virginia Intermediate Court of Appeals
(a) In accordance with Article VIII, Section one of the West
Virginia Constitution, the "West Virginia Intermediate Court of
Appeals" is created. The court shall be established and operable
on or before January 1, 2015. The West Virginia Intermediate Court
of Appeals "Intermediate Court" shall be divided into two
districts. The two intermediate courts of appeals shall be
designated as "Intermediate Court, Northern District" or "Northern
District" and "Intermediate Court, Southern District" or "Southern
District." Each court shall be located in the district it serves.
The Intermediate Court is a court of record and shall issue, as appropriate in each appeal, written opinions, orders and decisions.
(b) The Northern District is comprised of the following
judicial circuits: first, second, third, fourth, fifth, fifteenth,
sixteenth, seventeenth, eighteenth, nineteenth, twentieth,
twenty-first, twenty-second, twenty-third, and twenty-sixth.
(c) The Southern District is comprised of the following
judicial circuits: sixth, seventh, eighth, ninth, tenth, eleventh,
twelfth, thirteenth, fourteenth, twenty-fourth, twenty-fifth,
twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, and
(d) The Intermediate Court may be located in the seat of state
government, any county seat for the purpose of hearing oral
argument, or may be located in a fixed location.
§55A-2-2. Judges; qualifications.
(a) The Intermediate Court shall consist of six judges, three
judges in each district, initially appointed by the Governor in
accordance with section four of this article.
(b) An Intermediate Court judge must be a resident of the
district where he or she will preside, a member in good standing of
the West Virginia State Bar and admitted to practice law in this
state for at least ten years prior to appointment or election.
(c) An Intermediate Court judge may not engage in any other
business, occupation or employment inconsistent with the expeditious, proper and impartial performance of his or her duties
as a judicial officer. An Intermediate Court justice is not
permitted to engage in the outside practice of law and shall devote
full time to his or her duties as a judicial officer.
§55A-2-3. Jurisdiction; deflective rights of the West Virginia
Supreme Court of Appeals; discretionary appeals.
(a) The Intermediate Court shall not have original
(b) Petitions for appeal shall be filed with the West Virginia
Supreme Court of Appeals ("Supreme Court"). Those cases for which
the Supreme Court elects not to grant petitions for appeal shall be
transferred to the Intermediate Court.
(c) The Intermediate Court has jurisdiction to hear appeals
from final judgments or orders entered by a circuit court in any
civil or criminal case, appeals from the Workers' Compensation
Board of Review and the Public Service Commission.
(d) All appeals shall be reviewed and a written decision on
the merits issued by either the Supreme Court or Intermediate Court
as a matter of right except for the following appeals, which shall
be discretionary with the courts:
(1) Appeals from the Workers' Compensation Board of Review
established by section eleven, article five, chapter twenty-three
of this code;
(2) Appeals from orders of the Public Service Commission
established by article one, chapter twenty-four of this code;
(3) Appeals from decisions of circuit courts of administrative
appeals of an agency as defined in article one, chapter
twenty-nine-a of this code; and
(4) Appeals of misdemeanor convictions.
(e) Within thirty days after a decision by the Intermediate
Court, any aggrieved party may petition the Supreme Court by
petition for writ of certiorari as provided by the West Virginia
Rules of Appellate Procedure.
§55A-2-4. Number of Intermediate Court judges; initial
appointment; election; term of office; vacancy;
(a) There shall be three judges for each district of the
Intermediate Court. The Governor shall, on or before July 1, 2014,
appoint the initial judges from names submitted by the Judicial
Vacancy Advisory Committee established pursuant to section three-a,
article ten, chapter three of the West Virginia Code. The
committee shall recommend three qualified nominees for each
position for Intermediate Court judge. If the Governor does not
select a nominee for the position of judge from the names provided
by the committee, he or she shall notify the committee of that
circumstance and the committee shall provide additional names for consideration by the Governor.
(b) The committee is responsible for reviewing and evaluating
candidates for possible appointment to the Intermediate Court by
the Governor. In reviewing candidates, the committee may accept
applications from any attorney who believes himself or herself
qualified for the judgeships. The committee may accept comments
from and request information from any person or source.
(c) Of the initial appointments for each district, one judge
shall be appointed for a term of four years, one judge shall be
appointed for a term of six years and one judge shall be appointed
for a term of eight years. Upon the expiration of each term, the
judge's position shall be filled by election, for a ten-year term,
in the same manner as with the Supreme Court.
(d) After the initial appointments are made, vacancies in
office shall be filled in the same manner as vacancies on the
(e) One judge of the Intermediate Court shall be chosen chief
judge of the Intermediate Court. The manner of choosing the chief
judge and providing for periodic rotation of the position of chief
judge shall be determined by rules to be established by the Supreme
§55A-2-5. Compensation and expenses of Intermediate Court judges
(a) The annual salary of an Intermediate Court judge shall be
$118,OOO. Reimbursement for expenses shall be at a rate
established by the Supreme Court.
(b) Each judge of the Intermediate Court may employ two law
clerks and one secretary. The Intermediate Court may employ a
clerk and the necessary staff to carry out the administrative
duties of the court or, with the permission of the Supreme Court,
the administrative and other support staff of the Supreme Court may
carry out the administrative duties of both courts. The
compensation of the staff of the Intermediate Court shall be
established by the judges of the Intermediate Court with the
approval of the Supreme Court.
§55A-2-6. Temporary assignment of circuit court judges.
Upon the occurrence of a vacancy in the office of Intermediate
Court judge, the disqualification of an Intermediate Court judge or
the inability of an Intermediate Court judge to attend to his or
her duties because of illness, temporary absence, or any other
reason, the Chief Justice of the Supreme Court may assign any
senior status circuit judge or circuit judge of any judicial
circuit that is not from the same circuit as the appeal before the
Intermediate Court to hear and determine any and all matters then
or thereafter pending in the Intermediate Court to which the absent
Intermediate Court judge is assigned.
(a) The Administrative Director of the Supreme Court shall
provide the necessary physical facilities, furniture, fixtures and
equipment necessary for the efficient operation of the Intermediate
(b) In order to minimize costs, the director may: (1) Contract
with the Department of Administration, county commissions and
private parties to provide for space that is suitable for the
Intermediate Court; and (2) shall make existing courtrooms
throughout the state available for use by the Intermediate Court at
times convenient both to the Intermediate Court and the local
§55A-2-8. Precedential effect of court and decisions.
Unless stated by the court to be per curiam or unpublished,
all court orders and decisions shall have precedential effect.
The budget for the payment of the salaries and benefits for
the Intermediate Court judges and staff, facilities, furniture,
fixtures and equipment shall be included in the appropriation for
the Supreme Court. To the extent possible, the Supreme Court shall
designate existing facilities and existing staff members for use by
the Intermediate Court to minimize costs for establishing and
operating the Intermediate Court.
ARTICLE 3. MEDICAL MONITORING.
§55A-3-1. Claims for medical monitoring.
Notwithstanding the decision of the Supreme Court in Bower v.
Westinghouse, 522 S.E.2d 424 (W. Va. 1999), in any civil action in
which an individual seeks relief of any kind including damages and
equitable relief for the wrongful or tortious acts of any person,
relief may not include future medical monitoring, testing,
treatment, services, surveillance, or procedures of any kind,
including the costs and expenses associated therewith, unless the
future medical monitoring, testing, examination, treatment,
services, surveillance or procedures are directly related to a
present manifest physical injury or disease which was caused by or
directly related to tortious or wrongful acts and which was found
to have caused present physical impairment.
§55A-3-2. Overruling Bower v. Westinghouse, 522 S.E. 2d 424 (W.Va.
It is the intent of the Legislature that this legislation
overrules the decision of the Supreme Court in Bower v.
Westinghouse, 522 S.E.2d 424 (W. Va. 1999).
ARTICLE 4. VENUE.
§55A-4-1. Forum nonconveniens.
In any civil action if a court of this state, upon a timely written motion of a party, finds that in the interest of justice and
for the convenience of the parties a claim or action would be more
properly heard in a forum outside this state, the court shall
decline to exercise jurisdiction under the doctrine of forum non
conveniens and shall stay or dismiss the claim or action or dismiss
any plaintiff. The plaintiff's choice of a forum is entitled to
great deference but this preference may be diminished when the
plaintiff is a nonresident and the cause of action did not arise in
this state. In determining whether to grant a motion to stay or
dismiss an action or dismiss a plaintiff under the doctrine of forum
nonconveniens, the court shall consider:
(1) Whether an alternate forum exists in which the claim or
action may be tried;
(2) Whether maintenance of the claim or action in the courts
of this state would work a substantial injustice to the moving
(3) Whether the alternate forum, as a result of the submission
of the parties or otherwise, can exercise jurisdiction over all the
defendants properly joined to the plaintiff's claim;
(4) The state in which the plaintiff(s) reside;
(5) The state in which the cause of action accrued;
(6) Whether the balance of the private interests of the parties
and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall
include consideration of the extent to which an injury or death
resulted from acts or omissions that occurred in this state. Factors
relevant to the private interests of the parties include, but are
not limited to, the relative ease of access to sources of proof;
availability of compulsory process for attendance of unwilling
witnesses; the cost of obtaining attendance of willing witnesses;
possibility of a view of the premises, if a view would be
appropriate to the action; and all other practical problems that
make trial of a case easy, expeditious and inexpensive. Factors
relevant to the public interest of the state include, but are not
limited to, the administrative difficulties flowing from court
congestion; the interest in having localized controversies decided
within the state; the avoidance of unnecessary problems in conflict
of laws or in the application of foreign law; and the unfairness of
burdening citizens in an unrelated forum with jury duty;
(7) Whether not granting the stay or dismissal would result in
unreasonable duplication or proliferation of litigation; and
(8) Whether the alternate forum provides a remedy.
§55A-4-2. Timely motion.
A motion pursuant to section one of this article is timely if
it is filed either concurrently or prior to the filing of either a
motion pursuant to Rule 12 of the West Virginia Rules of Civil Procedure or a responsive pleading to the first complaint that gives
rise to the grounds for such a motion. A court may, for good cause
shown, extend the period for the filing of such a motion.
§55A-4-3. Statute of limitations.
If the statute of limitations in the alternative forum expires
while the claim is pending in a court of this state, the court shall
grant a dismissal under this article only if each defendant waives
the right to assert a statute of limitation defense in the
alternative forum. The court may further condition a dismissal
under this article to allow for the reinstatement of the same cause
of action in the same forum in the event a suit on the same cause
of action or on any cause of action arising out of the same
transaction or occurrence is commenced in an appropriate alternative
forum within sixty days after the dismissal under this article and
such alternative forum declines jurisdiction.
§55A-4-4. Proper dismissal.
Except as provided in section two of this article, if an action
involves both legal resident and nonresident plaintiffs, the court
may not stay or dismiss the action under section one of this article
if the plaintiffs who are legal residents of this state are properly
joined in the action and the action arose out of a single
occurrence. The court shall dismiss a claim under section one of
this article if the court finds by a preponderance of the evidence that a party was joined solely for the purpose of obtaining or
maintaining jurisdiction in this state and the party's claim would
be more properly heard in a forum outside this state.
§55A-4-5. Class representative(s).
In class actions filed pursuant to Rule 23 of the West Virginia
Rules of Civil Procedure, this article applies only to the class
§55A-4-6. Stay or dismissal specific findings of fact and
conclusions of law.
A court that grants a motion to stay or dismiss an action
pursuant to this article shall set forth specific findings of fact
and conclusions of law.
ARTICLE 5. COMPETENCY OF EXPERT WITNESSES.
§55A-5-1. Opinion testimony by lay witnesses.
If a witness is not testifying as an expert, the testimony of
that witness in the forms of opinions or inferences is limited to
those opinions or inferences that are: (1) Rationally based on the
perception of the witness; (2) helpful to a clear understanding of
the witness' testimony or the determination of a fact in issue; and
(3) not based on scientific, technical or other specialized
knowledge within the scope of section two of this article.
§55A-5-2. Testimony by experts.
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training or education may testify in the form of
an opinion or otherwise, if: (1) The testimony is based upon
sufficient facts or data; (2) the testimony is the product of
reliable principles and methods; and (3) the witness has applied the
principles and methods reliably to the facts of the case.
§55A-5-3. Basis of expert opinion testimony.
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not
be admissible in evidence in order for the opinion or inference to
be admitted. Facts or data that are otherwise inadmissible shall
not be disclosed to the jury by the proponent of the opinion or
inference unless the court determines that their probative value in
assisting the jury to evaluate the expert's opinion substantially
outweighs their prejudicial effect.
§55A-5-4. Bars to expert testimony.
(a) A witness qualified as an expert by knowledge, skill,
experience, training or education may only offer expert testimony with respect to a particular field in which the expert is qualified.
(b) An expert witness may receive a reasonable and customary
fee for the rendering of professional services provided that the
testimony of an expert witness may not be admitted if any the
compensation is contingent on the outcome of any claim or case with
respect to which the testimony is being offered.
§55A-5-5. Mandatory pretrial hearing.
If the witness is testifying as an expert, then upon motion of
a party, the court shall hold a pretrial hearing to determine
whether the witness qualifies as an expert and whether the expert's
testimony satisfies the requirements of sections two, three and four
of this article. The court shall allow sufficient time for a
hearing and shall rule on the qualifications of the witness to
testify as an expert and whether or not the testimony satisfies the
requirements of sections two, three and four of this article. The
hearing and ruling shall be completed no later than the final
pretrial conference pursuant to Rule 16(d) of the West Virginia
Rules of Civil Procedure. The trial court's ruling shall set forth
the findings of fact and conclusions of law upon which the order to
admit or exclude expert evidence is based.
§55A-5-6. Mandatory pretrial disclosure of expert testimony.
(a) Whether or not any party elects to request a pretrial
hearing contemplated in section five of this article, all parties shall disclose to other parties the identity of any person who may
be used at trial to present expert evidence.
(b) Except as otherwise stipulated or directed by the court,
this disclosure shall, with respect to a witness who is retained or
specially employed to provide expert testimony in the case or whose
duties as an employee of the party regularly involve giving expert
testimony, be accompanied by a written report prepared and signed
by the witness. The report shall contain: A complete statement
of all opinions to be expressed and the basis and reasons; the data
or other information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support for the
opinions; the qualifications of the witness, including a list of all
publications authored by the witness within the preceding ten years;
the compensation to be paid for the study and testimony; and a
listing of any other cases in which the witness has testified as an
expert at trial or by deposition within the preceding four years.
(c) These disclosures shall be made at the times and in the
sequence directed by the court. In the absence of other directions
from the court or stipulation by the parties, disclosures shall be
made at least ninety days before the trial date or the date the case
is to be ready for trial, or if the evidence is intended solely to
contradict or rebut evidence on the same subject matter identified
by another party under subsection (b) of this section, within thirty days after the disclosure made by the other party.
(d) A party may depose any person who has been identified as
an expert whose opinions may be presented at trial. If a report
from the expert is required under subsection (b) of this section,
the deposition may not be conducted until after the report is
In interpreting and applying this article, the courts of this
state shall follow the opinions of the Supreme Court of the United
States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), Kumho
Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), Weisgram v.
Marley, 528 U.S. 440 (2000), and cases citing them as precedents.
Additionally, the courts of this state may draw from other
precedents binding in the federal courts of this state applying the
standards announced by the Supreme Court of the United States in
§55A-5-8. Standard of review.
(a) As the proper construction of the expert evidence
admissibility framework prescribed by this section is a question of
law, the Supreme Court and Intermediate Court shall apply a de novo
standard of review in determining whether the circuit court fully applied the proper legal standard in considering the admissibility
of expert evidence.
(b) As the application of this section to determine the
admissibility of expert testimony is a question of fact, the Supreme
Court and Intermediate Court shall apply an abuse of discretion
standard in determining whether the circuit court properly admitted
or excluded particular expert evidence.
ARTICLE 6. PUNITIVE DAMAGES.
§55A-6-1. General rules.
(a) Punitive damages may be awarded in a civil action against
a defendant only if the plaintiff establishes by clear and
convincing evidence that the damages suffered were the result of
conduct that was carried out by the defendant with actual malice
toward the plaintiff or a conscious, reckless, and outrageous
indifference to the health safety, and welfare of others.
(b) Punitive damages may only be awarded in civil actions
seeking money for damages.
(c) Punitive damages may be awarded in a civil action against
a defendant only if compensatory damages have been awarded against
a defendant to the plaintiff for the same course of conduct of the
(d) Punitive damages may not be awarded on a claim for breach
(e) A defendant may not be held liable for punitive damages
unless the trier of fact finds that its award of compensatory
damages alone is not sufficient to punish the defendant for the
conduct and to deter the defendant from like conduct in the future.
§55A-6-2. Proportional awards.
(a) The amount of punitive damages that may be awarded for a
claim in a civil action shall not exceed the greater of three times
the amount of compensatory damages or $250,000 where the punitive
damages are recoverable from large employers.
(b) The amount of punitive damages that may be awarded for a
claim in a civil action shall not exceed the lesser of three times
compensatory damages or $100,000 where the punitive damages are
recoverable from a defendant who is not a large employer.
(c) This section shall be applied by the circuit court and
shall not be disclosed to the jury.
(d) If a jury returns a verdict for punitive damages against
the defendant in excess of these amounts, the circuit court shall
reduce the award so that it will not exceed the applicable amount
set forth in this section.
§55A-6-3. Multiple awards.
(a) If the jury returns a verdict of punitive damages against
a defendant in the case at bar and if the total amount of any prior
punitive damages awards obtained by the same or other plaintiffs in any state or federal court against that defendant for the same
course of conduct as alleged in the case at bar exceeds the
applicable amount set forth in section two of this article no
further punitive damages may be awarded against that defendant in
that specific case.
(b) If the total amount of any prior punitive damages awards
is less than the applicable amount set forth in section two of this
article, the amount of any punitive damages awarded in that specific
case shall be reduced if necessary so that the combined total amount
of punitive damages awarded in the case at bar and the prior actions
shall not exceed the applicable amount set forth in section two of
(c) This section shall be applied by the circuit court and
shall not be disclosed to the jury.
(a) In a civil action in which punitive damages are sought, the
court shall bifurcate the trial of the action if requested by a
(b) In the first stage of a bifurcated trial, the trier of fact
shall determine liability for compensatory damages, and the amount
of compensatory damages. If the trier of fact determines during the
first stage of a bifurcated trial that a defendant is liable for
compensatory damages, then the court shall determine whether the evidence was sufficient to permit the jury to consider punitive
(c) If determined sufficient, that same trier of fact shall
determine, in a second stage of the trial, whether the defendant is
liable for punitive damages and, if applicable, the amount of
punitive damages that should be awarded.
(d) If a bifurcated proceeding is requested, evidence relevant
only to the claim of punitive damages is inadmissible in the first
stage of the trial.
§55A-6-5. Complicity rule.
(a) A principal or employer who is a natural person may be
liable for punitive damages as a result of conduct of his or her
agent or employee only when the plaintiff proves by clear and
convincing evidence that the damages suffered were the result of
conduct that was carried out by the principal or employer with
actual malice toward the plaintiff or with a conscious, reckless and
outrageous indifference to the health, safety and welfare of others.
(b) A principal or employer that is other than a natural person
may be liable for punitive damages as a result of the conduct of its
agent or employee only when the plaintiff proves by clear and
convincing evidence that the damages suffered were the result of
conduct that was carried out by a senior manager of the principal
or employer with actual malice toward the plaintiff or with conscious, reckless and outrageous indifference to the health,
safety and welfare of others.
(c) A person may be liable for punitive damages as a result of
the conduct of members or partners only when the plaintiff proves
by clear and convincing evidence that the damages suffered were the
result of conduct that was carried out by a senior manager in the
employment of a person with actual malice toward the plaintiff or
with a conscious, reckless and outrageous indifference to the
health, safety, and welfare of others.
ARTICLE 7. COMPARATIVE FAULT.
§55A-7-1. Comparative fault standard established.
(a) 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 person in direct proportion
to that person's percentage of fault.
(b) 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.
§55A-7-2. Several liability.
(a) In any action for damages, the liability of each defendant
for compensatory damages is several only and is not joint. Each
defendant shall be liable only for the amount of compensatory damages allocated to that defendant in direct proportion to that
s percentage of fault and a separate judgment shall be
rendered against the defendant for that amount. The fault allocated
under this subsection to an immune defendant or a defendant whose
liability is limited by law may not be allocated to any other
(b) 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 that defendant.
§55A-7-3. 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 the person was or could have been
named as a party to the suit. The fault shall include the fault
imputed or attributed to a person by operation of law, if any.
(1) 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.
(2) The notice shall be given by filing a pleading or discovery
response in the action designating a nonparty and setting forth the nonparty's:
(A) Name and last-known address; or
(B) The best identification of the nonparty which is possible
under the circumstances; and
(C) A brief statement of the basis for believing the nonparty
to be at fault.
(3) 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 the nonparty.
(4) 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.
(5) The plaintiff shall promptly and fully inform all other
persons against whom liability is asserted of the terms of any
(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
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 this article. For this purpose, the court may determine
that two or more persons are to be treated as a single person.
§55A-7-4. 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 that person, or if the fault of the other person is
otherwise imputed or attributed to that person by statute or common
§55A-7-5. Failure to take reasonable precautionary measures.
In any civil action, the finder of fact may assess a percentage
of fault against a plaintiff who is injured as a proximate result
of that plaintiff's failure to take reasonable precautionary
measures that were available.
§55A-7-6. Fault of person not a manufacturer.
A person who is not the manufacturer of a product but is merely in the chain of its distribution, such as a seller, distributor or
installer, and who did not alter, change, or modify the product in
a way that created or contributed to the alleged defect, may not be
assessed a percentage of comparative fault under the theory of
strict product liability for accidents, injuries or damages
proximately caused, in whole or in part, by the product.
§55A-7-7. Burden of proof.
The burden of alleging and proving comparative fault shall be
upon the person who seeks to establish such fault.
§55A-7-8. Immunity of premise owners from civil liability.
No owner, occupant, lessee or managing agent of property shall
be liable for the death or injury of an independent contractor's
employees resulting from dangers of which the contractor knew or
reasonably should have known.
ARTICLE 8. COLLATERAL SOURCES.
§55A-8-1. Reduction in compensatory damages for collateral sources
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 the action shall be reduced, in accordance with
section two of this article, 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 the 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
§55A-8-2. Postverdict determination of reduction in compensatory
(a) The reduction in compensatory damages required under
section one of this article 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. At trial no
evidence shall be admitted as to the amount of any charges,
payments, or losses for which a plaintiff has received payment from
a collateral source or the obligation for which has been assumed by
a collateral source, or 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.
(b) A plaintiff who has received, or is to receive, collateral
source payments may introduce evidence before the court, but not at
trial, of any amount which the plaintiff has paid or contributed to secure his or her right to any such collateral source payments, any
recovery by the plaintiff is subject to a lien by a collateral
source, that a provider of the collateral source payments has a
statutory right of recovery against the plaintiff for reimbursement
of the payments or that the provider of the collateral source
payments has a right of subrogation to the rights of the plaintiff.
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 such
collateral source payments.
ARTICLE 9. STATUTE OF REPOSE.
§55A-9-1. Eighteen-year warranty.
No product liability action concerning a durable good as
defined in article one, section four of this chapter may be filed
after the eighteen-year period beginning at the time of delivery of
the product to the first purchaser or lessee.
§55A-9-2. Extended express warranty.
Section one of this article does not bar a product liability
action against a defendant who made an express warranty in writing
as to the safety or life expectancy of the specific product involved
which is for a period of time exceeding eighteen years, except that
section one of this article shall apply at the expiration of that warranty.
ARTICLE 10. DAMAGES FOR NONECONOMIC LOSS.
§55A-10-1. Causes of action where damages were authorized upon
this legislation's effective date.
Damages for noneconomic loss shall be recoverable for cases
where causes of action for those damages are authorized at the time
this chapter becomes effective.
§55A-10-2. Civil actions based on physical injury.
(a) Damages for noneconomic loss shall be recoverable in civil
actions based on physical injury.
(b) The plaintiff who experienced the physical injury on which
the action is based and all plaintiffs who derive their claims from
or through such plaintiff may recover damages for noneconomic loss
in a total amount for those plaintiffs not to exceed the greater of
$250,000 or three times economic damages, up to a maximum of
(c) In the event that the physical injury is permanent and
severe physical deformity, loss of use of limb or loss of a major
bodily organ system or permanent physical functional injury that
permanently prevents the injured person from being able to
independently care for himself or herself and perform life
sustaining activities, then the plaintiff who experienced the physical injury and all other plaintiffs who derive their claims
from or through the plaintiff may recover damages for noneconomic
loss in a total amount for all such plaintiffs not to exceed the
greater of $1 million or the product of the amount calculated on
an annual basis pursuant to article four, chapter twenty-three of
this code, which represents the maximum average weekly wage,
annualized, for a worker employed in this state times the number of
years remaining in the plaintiff's expected life, regardless of the
number of parties against whom the action is brought or could have
been brought or the number of claims asserted or actions brought or
that could have been asserted or brought with respect to the injury.
§55A-10-3. Civil actions not based on physical injury.
(a) Damages for noneconomic loss shall be recoverable in all
actions other than those based on physical injury.
(b) The plaintiff who experienced the economic loss on which
the action is based and all plaintiffs who derive their claims from
or through the plaintiff may recover damages for noneconomic loss
in a total amount for all such plaintiffs no greater than the award
of damages for economic loss or $1 million, whichever is less,
regardless of the number of parties against whom the action is
brought or could have been brought or the number of claims asserted
or actions brought or that could have been asserted or brought with
respect to the economic loss.
ARTICLE 11. LOSER PAYS.
§55A-11-1. Recovery of attorney's fees by prevailing party;
applicability to causes of action and parties.
(a) The prevailing party with respect to a claim may recover
reasonable attorney's fees from an individual, corporation or other
legal entity if the claim is for:
(1) Rendered services;
(2) Performed labor;
(3) Furnished material;
(4) Freight or express overcharges;
(5) Lost or damaged freight or express;
(6) Killed or injured stock;
(7) A sworn account; or
(8) An oral or written contract.
(b) The prevailing party with respect to a claim may not
recover reasonable attorney's fees from an individual, corporation
or other legal entity if the claim is for:
(1) Any civil action primarily governed by the family law
chapters of this code;
(2) A class action;
(3) A shareholder's derivative action;
(4) An action filed in magistrate court; or
(5) A civil action in which the amount in controversy, including all requests for damages, reimbursement of attorney's
fees, and litigation costs, is less than $100,000 and the plaintiff
has made an election to proceed.
(c) This article applies to any party who is a claimant or
defendant, including, but not limited to:
(1) A county;
(2) A municipality;
(3) A public school district;
(4) A public junior college district;
(5) A charitable organization;
(6) A nonprofit organization;
(7) A hospital district;
(8) A hospital authority;
(9) Any other political subdivision of the state; and
(10) The State of West Virginia.
§55A-11-2. Procedure for recovery of attorney's fees.
Attorney's fees may be recovered under this article if:
(1) The person seeking to recover attorney's fees is
represented by an attorney;
(2) The plaintiff presents the claim to the opposing party or
to a duly authorized agent of the opposing party; and
(3) Payment for the just amount owed is not tendered before the
expiration of the thirtieth day after the claim is presented.
It is presumed that the usual and customary attorney's fees for
a claim of the type described in section one of this article are
reasonable. The presumption may be rebutted.
§55A-11-4. Judicial notice.
The court may take judicial notice of the usual and customary
attorney's fees and of the contents of the case file without
receiving further evidence in:
(1) A proceeding before the court; or
(2) A jury case in which the amount of attorney's fees is
submitted to the court by agreement.
§55A-11-5. Liberal construction.
This article shall be liberally construed to promote its
§55A-11-6. Defendant election.
(a) A defendant may elect to apply this article to any civil
action in which a plaintiff has asserted a claim against the
(b) An election under this section must identify each plaintiff
against whom the election is made.
(c) An election may not be made before the sixtieth day after
the date the defendant filed an answer to the plaintiff's civil action or within sixty days of the date of trial.
(d) The election must be:
(1) In writing;
(2) Signed by the attorneys of record of the defendant;
(3) Filed with the papers as part of the record; and
(4) Served on all plaintiffs against whom the election is made.
(e) A deadline under this section may be amended or modified
by agreement of the parties or by order of the court in a discovery
control plan as provided by Rule 26, West Virginia Rules of Civil
§55A-11-7. Plaintiff election.
(a) Plaintiffs may elect to apply the provisions of this
article in a civil actions which:
(1) The total amount of damages the plaintiff seeks to recover
for all claims is not less than $10,000 and not more than $100,000;
(2) The plaintiff files and serves a written election.
(b) A plaintiff election must be made at the time the electing
plaintiff first files a claim in the action.
(c) A plaintiff may make an election not later than the
sixtieth day after the date the last defendant has filed an answer.
(d) An election made by a plaintiff under this section is
binding on all parties to the expedited civil action unless a defendant files a claim more than sixty days before trial and in
that claim makes a good faith claim that the recovery of monetary
damages might be in excess of $100,000.
§55A-11-8. Revocation of election.
(a) An election made under sections six and seven of this
article may be revoked wholly or partly by agreement of the parties.
(b) A revocation under this section must identify the
plaintiffs and defendants for whom the revocation is made. A
revocation may be made at any time before an award is made under
section ten of this article based on the election. The revocation
(1) In writing;
(2) Signed by the attorneys of record of all parties to whom
the revocation applies; and
(3) Filed as part of the record.
§55A-11-9. Dismissal or nonsuit of action.
If a plaintiff against whom an election is made by a defendant
under section six of this article nonsuits or voluntarily dismisses
with prejudice the civil action for which the election is made not
later than the fifteenth day after the date the plaintiff was served
with the election, the election does not apply to the nonsuited or
dismissed civil action.
§55A-11-10. Award of litigation costs.
(a) If an election is made under this article, the prevailing
party may recover the prevailing party's litigation costs.
(b) The determination of which party is the prevailing party
is a question of law for the court.
(c) Litigation costs under this article are costs directly
related to the civil action between the plaintiff and the defendant.
Litigation costs include:
(1) Reasonable and necessary attorney's fees;
(2) Reasonable and necessary travel expenses;
(3) Reasonable fees for not more than two testifying expert
(4) Court costs.
(d) A fee agreement that results in a fee that is fixed or
contingent on results obtained or uncertainty of collection before
the legal services have been rendered may not be considered in the
determination of the amount of reasonable and necessary attorney's
§55A-11-11. Liability of attorney.
(a) This section applies to a civil action if:
(1) A party is entitled to recover litigation costs under
section eleven of this article;
(2) The election under sections six and seven of this article
states that the party making the election will seek litigation costs under section ten; and
(3) An attorney of record for the party against whom litigation
costs are recoverable has a financial interest in the civil action.
(b) If the trier of fact determines that a civil action is an
abusive civil action, an attorney of record for the party against
whom litigation costs are recoverable is liable to the prevailing
party, jointly and severally, for the amount of the litigation costs
(c) The determination of whether an attorney has a financial
interest in a civil action is a question of law for the court. An
attorney is not an attorney of record for the purposes of this
section if the attorney withdraws as attorney of record and
relinquishes any financial interest in the civil action more than
sixty days before trial.
(d) The determination of whether a civil action is an abusive
civil action is a question of fact. In a case in which the
determination of whether a civil action is an abusive civil action
is submitted to a jury, the charge to the jury must ask whether the
civil action filed by the plaintiff was an abusive civil action.
The following instruction must be included in the charge: "You are
instructed that an abusive civil action is a civil action that a
reasonable person would conclude is a misuse of the civil justice
§55A-11-12. Applicability of other law.
If an election is made under sections six or seven of this
article, this article controls over any other law to the extent the
other law requires, authorizes, prohibits or otherwise governs the
award of attorney's fees or other costs of litigation in connection
with the civil action.
ARTICLE 12. THE SUPREME COURT ADOPTION OF RULES, CONFLICTING LAWS
REPEALED, APPLICABILITY, SEVERABILITY, NO ADDITIONAL
CAUSE OF ACTION CREATED BY THIS CHAPTER AND EFFECTIVE
§55A-12-1. Supreme Court adoption of rules.
(a) The Supreme Court shall adopt rules to implement this
chapter not later than January 1, 2014.
(b) The rules shall at a minimum:
(1) Require documents filed in all courts of this state to be
(2) Require all courts of this state to electronically file and
publish orders and decisions;
(3) Require the prompt, efficient, and cost-effective
resolution of an expedited civil action, including the discovery
between the parties and early dismissals of actions;
(4) Provide for pleading, practice and procedure in matters before the Intermediate Court;
(5) Allow interlocutory appeals to the Supreme Court and the
§55A-12-2. Conflicting laws repealed.
This chapter supersedes, invalidates and repeals all other
state laws that are in conflict with its provisions.
This chapter applies to all causes of action arising on or
after the effective date of this chapter.
§55A-12-4. Severability clause.
The provisions of this chapter and each article, 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 chapter be held void, the
remaining provisions of this chapter and this code shall remain
§55A-12-5. No additional cause of action created by this chapter.
Nothing in this chapter may be construed to create a cause of
§55A-12-6. Effective date.
This chapter shall become effective immediately upon passage by the Legislature and approval by the Governor.
NOTE: The purpose of this bill is to reform the civil justice
system and create an intermediate court of appeals.
This chapter is new; therefore, strike-throughs and
underscoring have been omitted.