Senate Bill No. 390
(By Senator Carmichael)
[Introduced February 27, 2013; referred to the Committee
A BILL to amend and reenact §55-7-24 of the Code of West Virginia,
1931, as amended, relating to increasing the threshold of a
defendant's liability in a tort action involving more than one
defendant, from thirty percent at fault or less to sixty
percent at fault or less, to qualify for several liability and
not joint and several liability.
Be it enacted by the Legislature of West Virginia:
That §55-7-24 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-24. Apportionment of damages.
any a cause of action involving the tortious conduct of
more than one defendant, the trial court shall:
(1) Instruct the jury to determine or, if there is no jury, find, the total amount of damages sustained by the claimant and the
proportionate fault of each of the parties in the litigation at the
time the verdict is rendered; and
(2) Enter judgment against each defendant found to be liable
on the basis of the rules of joint and several liability except
any a defendant is thirty sixty percent or less at fault,
then that defendant's liability shall be is several and not joint
and he or she shall be is liable only for the damages attributable
to him or her except as otherwise provided in this section.
(b) Notwithstanding subdivision (2), subsection (a) of this
section, the rules of joint and several liability
shall apply to:
Any A party who acted with the intention of inflicting
injury or damage;
Any A party who acted in concert with another person as
part of a common plan or design resulting in harm;
Any A party who negligently or willfully caused the
unlawful emission, disposal or spillage of a toxic or hazardous
Any A party strictly liable for the manufacture and sale
of a defective product.
(c) Notwithstanding subdivision (2), subsection (a) of this
section, if a claimant through good faith efforts is unable to
collect from a liable defendant, the claimant may, not later than
six months after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later,
move for reallocation of any uncollectible amount among the other
parties in the litigation at the time the verdict is rendered.
(1) Upon the filing of such a motion, the court shall
determine whether all or part of a defendant's proportionate share
of the verdict is uncollectible from that defendant and shall
reallocate such uncollectible amount among the other parties in the
litigation at the time the verdict is rendered, including a
claimant at fault according to their percentages of fault:
Provided, That the court
shall may not reallocate to any defendant
an uncollectible amount greater than that defendant's percentage of
fault multiplied by such uncollectible amount.
such a motion is filed, the parties may conduct
discovery on the issue of collectability prior to a hearing on such
(3) Any order regarding
such the motion shall be entered
within one hundred twenty days after the date of filing such a the
(4) A defendant's share of the obligation to a claimant may
not be increased by reason of reallocation under this subsection
(A) The percentage of fault of that defendant is equal to or
less than the claimant's percentage of fault; or
(B) The percentage of fault of that defendant is less than ten percent.
(5) A party whose liability is reallocated is nonetheless
subject to contribution and to any continuing liability to the
claimant on the judgment.
(6) If any defendant's share of the obligation to a claimant
is not increased by reason of the application of subdivision (4) of
this subsection, the amount of that defendant's share of the
shall be is considered uncollectible and shall be
reallocated among all other parties who are not subject to
subdivision (4) of this subsection, including the claimant, in the
same manner as otherwise provided this subsection.
(d) Nothing in this section
may be construed to affect, impair
or abrogate affects any right of indemnity or contribution arising
out of any a contract or agreement or any right of indemnity
otherwise provided by law.
(e) Nothing in this section creates or recognizes, either
explicitly or impliedly,
any a new or different cause of action not
otherwise recognized by law.
(f) Nothing in this section
may be construed to affect, impair
or abrogate affects the provisions of section seven, article
twelve-a, chapter twenty-nine of this code or section nine, article
seven-b of this chapter.
(g) This section applies only to causes of action that accrue
on or after July 1, 2005.
NOTE: The purpose of this bill is to increase the threshold of
a defendant's liability in a tort action involving more than one
defendant, from thirty percent at fault or less to sixty percent at
fault or less, to qualify for several liability and not joint and
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would