Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home
WEST VIRGINIA CODE
‹ Back  |  print page Print
WVC 55- CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
JUDICIAL SALE.


WVC -1- ARTICLE 1. STATUTE OF FRAUDS.


WVC 55-1-1 §55-1-1. When writing required.
No action shall be brought in any of the following cases:

(a) To charge any person upon or by reason of a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another, to the intent or purpose that such other may obtain thereby credit, money, or goods; or

(b) To charge any person upon a promise made, after full age, to pay a debt contracted during infancy; or upon a ratification after full age, of a promise or simple contract made during infancy; or

(c) To charge a personal representative upon a promise to answer any debt or damages out of his own estate; or

(d) To charge any person upon a promise to answer for the debt, default, or misdoings of another; or

(e) Upon any agreement made upon consideration of marriage; or

(f) Upon any agreement that is not to be performed within a year; or

(g) Upon any offer, agreement, representation, assurance, understanding, commitment, or contract of a bank, savings and loan association, or credit union, to extend credit or to make a loan in excess of fifty thousand dollars, primarily for nonagricultural, business or commercial purposes, not including charge or credit card accounts, personal lines of credit, overdrafts, or any other consumer account: Provided, That this subsection shall not apply to any offer, agreement, representation, assurance, understanding, commitment or contract with a bank, savings and loan association or credit union in which a transaction has been completed as evidenced by a fund transfer;

Unless the offer, promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged thereby or his agent. But the consideration need not be set forth or expressed in the writing; and it may be proved (where a consideration is necessary) by other evidence.


WVC -2- ARTICLE 2. LIMITATION OF ACTIONS AND SUITS.


WVC 55-2-1 §55-2-1. Entry upon or recovery of lands.
No person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims.


WVC 55-2-1a §55-2-1a. Ownership or possession of surface of lands after severance of minerals not adverse to owner of minerals.
Whenever title to any minerals in land and the rights appurtenant thereto have been, or shall hereafter be, severed from title to the surface, the continuity of the possession of such minerals and the rights appurtenant thereto shall not be deemed to have been broken by such severance; and ownership or possession of the surface after severance shall not be adverse to the interests of the owner or owners of such minerals and appurtenant rights.


WVC 55-2-2 §55-2-2. Claim not to preserve right as to lands.
No continual or other claim upon or near any land shall preserve any right of making an entry or bringing an action.


WVC 55-2-3 §55-2-3. Entry upon or recovery of lands by persons under disability.
If at the time at which the right of any person to make an entry on, or bring an action to recover, any land shall have first accrued, such person was an infant or insane, then such person, or the person claiming through him, may, notwithstanding such period of ten years shall have expired, make an entry on, or bring an action to recover, such land within five years next after the time at which the person to whom such right shall have first accrued as aforesaid shall have ceased to be under such disability as existed when the same so accrued, or shall have died, whichever shall first have happened.


WVC 55-2-4 §55-2-4. Limitations upon §55-2-3.
The preceding section is subject to these provisos: That no such entry or action shall be made or brought by any person who, at the time at which his right to make or bring the same shall have first accrued, shall be under any such disability, or by any person claiming through him, but within twenty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under the same during the whole of such twenty years, or although the term of five years from the period at which he shall have ceased to be under any such disability, or have died, shall not have expired. And when any person shall be under any such disability at the time at which his right to make an entry or bring an action shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or to bring an action, beyond the ten years next after the right of such person shall have first accrued, or the five years next after the period of his death, shall be allowed by reason of any disability of any other person.


WVC 55 - 2 - 5 §55-2-5. Enforcement of liens reserved by conveyance or created by deed of trust or mortgage on real estate.
(a) Any lien reserved by any conveyance of real estate or created by any deed of trust or mortgage on real estate expires after the following periods of time, unless suit to enforce the lien is instituted prior to expiration of the time period or unless the lien is extended as specified in subsection (b) or (e) of this section:

(1) If the final maturity date of the obligation is ascertainable from the lien instrument, the lien expires five years after that date.

(2) If the final maturity date of the obligation is not ascertainable from the lien instrument, the lien expires thirty-five years after the date of the lien instrument. However, if the lienholder rerecords the lien instrument prior to thirty-five years from the date of the lien instrument and includes a copy of the obligation secured by the lien so that the final maturity is ascertainable, the lien expires five years after the date of maturity.

(b) If an affidavit or extension notice executed by the secured party or beneficiary of the lien instrument or an amendment to the lien instrument executed by the grantor or mortgagor and the secured party or beneficiary is recorded prior to expiration of the original period of limitation, as specified in subsection (a) of this section, the period of limitation is extended as follows:

(1) If the final maturity date of the obligation, as extended, secured by the lien instrument is ascertainable from the affidavit, extension notice or amendment, the lien expires five years after the date of final maturity of the obligation, as extended.

(2) If the final maturity date of the obligation, as extended, secured by the lien instrument is not ascertainable from the affidavit, extension notice or amendment, the lien expires thirty-five years after the date of the lien instrument. However, if the lienholder rerecords the lien instrument prior to thirty-five years from the date of the lien instrument and includes a copy of the obligation secured by the lien so that the final maturity is ascertainable, the lien expires five years after the date of maturity.

(c) Any affidavit, extension notice or amendment filed pursuant to subsection (b) of this section after the effective date of this section, shall include, but is not limited to, the following:

(1) The unpaid balance of the debt and interest secured by the lien instrument;

(2) The final maturity date of the obligation, as extended; and

(3) The book and page of recordation of the original lien instrument.

The clerk of the county commission shall record and index any affidavit, extension notice or amendment in the same manner as the original lien instrument and shall note that filing on the margin of the page where the original lien instrument is recorded.

(d) If the lien instrument shows that it secures an obligation payable in installments and the maturity date of the final installment of the obligation is ascertainable from the lien instrument, the time runs from the maturity date of the final installment.

(e) For purposes of this section only, a lien instrument securing an obligation which is payable on demand expresses no maturity date.

(f) Nothing in this section extinguishes any lien which was reserved or created and in effect prior to the first day of July, one thousand nine hundred ninety-eight. With respect to any lien reserved or created and in effect prior to the first day of July, one thousand nine hundred ninety-eight, the lien is valid for twenty years after its stated maturity, or if no maturity date is stated in the lien instrument, for thirty-five years after the date of the lien instrument.

(g) The periods of limitation created by this section may be extended only as provided in this section and may not be extended by any other method or by operation of law.


WVC 55-2-6 §55-2-6. Actions to recover on award or contract other than judgment or recognizance.
Every action to recover money, which is founded upon an award, or on any contract other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have accrued, that is to say: If the case be upon an indemnifying bond taken under any statute, or upon a bond of an executor, administrator or guardian, curator, committee, sheriff or deputy sheriff, clerk or deputy clerk, or any other fiduciary or public officer, within ten years; if it be upon any other contract in writing under seal, within ten years; if it be upon an award, or upon a contract in writing, signed by the party to be charged thereby, or by his agent, but not under seal, within ten years; and if it be upon any other contract, express or implied, within five years, unless it be an action by one party against his copartner for a settlement of the partnership accounts, or upon accounts concerning the trade or merchandise between merchant and merchant, their factors or servants, where the action of account would lie, in either of which cases the action may be brought until the expiration of five years from a cessation of the dealings in which they are interested together, but not after.


WVC 55-2-6a §55-2-6a. Deficiencies, injuries or wrongful death resulting from any improvements to real property; limitation of actions and suits.
No action, whether in contract or in tort, for indemnity or otherwise, nor any action for contribution or indemnity to recover damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property, or, to recover damages for any injury to real or personal property, or, for an injury to a person or for bodily injury or wrongful death arising out of the defective or unsafe condition of any improvement to real property, may be brought more than ten years after the performance or furnishing of such services or construction: Provided, That the above period shall be tolled according to the provisions of section twenty-one of this article. The period of limitation provided in this section shall not commence until the improvement to the real property in question has been occupied or accepted by the owner of the real property, whichever occurs first.


WVC 55-2-7 §55-2-7. Actions on bonds of personal representatives and fiduciaries.
The right of action upon the bond of an executor, administrator, guardian, curator or committee, or of a sheriff acting as such, shall be deemed to have first accrued as follows: Upon a bond of a guardian or curator of a ward, from the time of the ward's attaining the age of eighteen years, or from the termination of the guardian's or curator's office, whichever shall happen first; and upon the bond of any personal representative of a decedent or committee of an insane person, the right of action of a person obtaining execution against such representative or committee, or to whom payment or delivery of estate in the hands of such representative or committee shall be ordered by a court acting upon his account, shall be deemed to have first accrued from the return day of such execution, or from the time of the right to require payment or delivery upon such order, whichever shall happen first. And as to any suit against such fiduciary himself, or his representative, which could have been maintained if he had given no bond, there shall be no other limitation than would exist if the preceding section were not passed. Where any such fiduciary, or any other fiduciary, has settled an account under the provisions of article four, chapter forty-four of this code, a suit to hold such fiduciary or his sureties liable for any balance stated in such account to be in his hands shall be brought within ten years after the account has been confirmed. The right to recover money paid under fraud or mistake shall be deemed to accrue, both at law and in equity, at the time such fraud or mistake is discovered, or by the exercise of due diligence ought to have been discovered.


WVC 55-2-8 §55-2-8. Acknowledgment by new promise.
If any person against whom the right shall have so accrued on an award, or on any such contract, shall by writing signed by him or his agent promise payment of money on such award or contract, the person to whom the right shall have so accrued may maintain an action or suit for the moneys so promised within such number of years after such promise as it might originally have been maintained within upon the award or contract, and the plaintiff may either sue on such a promise, or on the original cause of action, and in the latter case, in answer to a plea under the sixth section, may, by way of replication, state such promise, and that such action was brought within such number of years thereafter; but no promise, except by writing as aforesaid, shall take any case out of the operation of the said sixth section, or deprive any party of the benefit thereof. An acknowledgment in writing as aforesaid, from which a promise of payment may be implied, shall be deemed to be such promise within the meaning of this section.


WVC 55-2-9 §55-2-9. Effect of acknowledgment by personal representative or joint contractor.
No acknowledgment or promise by any personal representative of a decedent, or by one of two or more joint contractors, shall charge the estate of such decedent, or charge any other of such contractors, in any case in which, but for such acknowledgment or promise, the decedent's estate or another contractor could have been protected under the sixth section of this article.


WVC 55-2-10 §55-2-10. Effect of devise for payment of debts.
No provision in the will of any testator devising his real estate, or any part thereof, subject to the payment of his debts, or charging the same therewith, shall prevent this article from operating against such debts, unless it plainly appear to be the testator's intent that it shall not so operate.


WVC 55-2-11 §55-2-11. Action or scire facias on recognizance.
Every action or scire facias upon a recognizance shall, if it be not a recognizance of bail, be commenced within ten years next after the right to bring the same shall have first accrued; and, if it be a recognizance of bail, within three years after the right to bring the same shall have first accrued.


WVC 55-2-12 §55-2-12. Personal actions not otherwise provided for.
Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.


WVC 55-2-13 §55-2-13. Foreign judgments and decrees.
Every action or suit upon a judgment or decree rendered in any other state or country shall be barred, if by the laws of such state or country such action or suit would there be barred, and the judgment or decree be incapable of being otherwise enforced there. And whether so barred or not, no action against a person who shall have resided in this state during the ten years next preceding such action shall be brought upon any such judgment or decree rendered more than ten years before the commencement of such action.


WVC 55-2-14 §55-2-14. Suit to repeal land grant.
A bill in equity to repeal, in whole or in part, any grant of land by this state or of the state of Virginia, shall be brought within ten years next after the date of such grant, and not after.


WVC 55-2-15 §55-2-15. General saving as to persons under disability.
If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight of this article, except that it shall in no case be brought after twenty years from the time when the right accrues.


WVC 55-2-16 §55-2-16. Death before right to sue.
If a person die before the time at which any right mentioned in this article would have accrued to him if he had continued alive, and there be an interval of more than five years between the death of such person and the qualification of his personal representative, such personal representative shall, for the purposes of this article, be deemed to have qualified on the last day of such five years.


WVC 55-2-17 §55-2-17. When suit prevented by defendant; actions on foreign contracts.
Where any such right as is mentioned in this article shall accrue against a person who had before resided in this state, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, or if such right has been or shall be hereafter obstructed by war, insurrection or rebellion, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But if another person be jointly or severally liable with the person so obstructing the prosecution of such right, and no such obstruction exist as to him, the exception contained in this section as to the person so absconding shall not apply to him in any action or suit brought against him to enforce such liability. And upon a contract which was made and was to be performed in another state or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred either by the laws of such state or country or by the laws of this state.


WVC 55 - 2 - 18 §55-2-18. Extension of period for new action after dismissal or reversal where the action is timely filed.
(a) For a period of one year from the date of an order dismissing an action or reversing a judgment, a party may refile the action if the initial pleading was timely filed and: (i) The action was involuntarily dismissed for any reason not based upon the merits of the action; or (ii) the judgment was reversed on a ground which does not preclude a filing of new action for the same cause.

(b) For purposes of subsection (a) of this section, a dismissal not based upon the merits of the action includes, but is not limited to:

(1) A dismissal for failure to post an appropriate bond;

(2) A dismissal for loss or destruction of records in a former action; or

(3) A dismissal for failure to have process timely served, whether or not the party is notified by the court of the pending dismissal.


WVC 55-2-19 §55-2-19. Application of statute of limitation to state.
Every statute of limitation, unless otherwise expressly provided, shall apply to the state.


WVC 55-2-19a §55-2-19a. Collection of taxes due state or any subdivision thereof.
Every action or process to collect any tax (other than ad valorem tax on real or personal property and the taxes administered under the provisions of article ten, chapter eleven of this code), interest and penalty due the state or any subdivision thereof shall be brought or issued within five years next after the date on which the taxpayer is required by the statute or ordinance imposing the tax, interest and penalty to file a return and pay the tax due thereunder, unless a different limitation is specifically prescribed by such statute or ordinance. The limitation provided by this section shall likewise apply to enforcement of the lien, if any, securing the payment of such tax, interest and penalty, but shall not apply in event of fraud or in event the taxpayer wholly fails to file the return required by the statute or ordinance imposing the tax.

The official of the state or any subdivision thereof who is charged with the duty of collecting any tax, interest and penalty, the collection of which is affected by the limitation hereinbefore provided, may, before the running of the five-year period of such limitation has been completed, enter into a written agreement with the taxpayer consenting to an extension of such period for an additional period of not to exceed two years, and any action or process may be brought or issued to collect such tax, interest and penalty at any time prior to the expiration of the period so agreed upon. The period so agreed upon may be extended for additional periods not in excess of two years each by subsequent agreements in writing made before the expiration of the period previously agreed upon.

The provisions of this section as hereby amended shall apply to tax periods ending on or after the first day of July, one thousand nine hundred seventy-eight, and the provisions of this section as in effect prior to the enactment hereof shall apply to tax periods ending before said date.


WVC 55-2-20 §55-2-20. Limitations applicable to proceedings pending or rights of action accruing before effective date of code.
No action, suit, scire facias, or other proceeding, which may be pending on the day before this code takes effect, or the right to prosecute which, under the laws in force on that day, shall have accrued before that day, shall be barred by this article, any further or otherwise than as follows: The same, if pending on that day, shall be subject to such limitation as it would have been subject to if this code had not been enacted, and where not so pending, if the right to prosecute the same shall exist on that day, for a certain number of years prescribed by any statute, the same, or such other action as may be substituted therefor by this code, may be prosecuted within such time as the same might have been prosecuted if this article had not been enacted, and not after; and where not so pending, if the right to prosecute the same shall exist on that day, in the case in which no certain number of years shall have been prescribed therefor by statute, the same, or such other action as may be substituted therefor by this code, may be prosecuted within such time as the same would have to be prosecuted if the right to bring it had accrued on the next day after this code takes effect.


WVC 55-2-21 §55-2-21. Statutes of limitation tolled on claims assertible in civil actions when actions commence.
After a civil action is commenced, the running of any statute of limitation shall be tolled for, and only for, the pendency of that civil action as to any claim which has been or may be asserted therein by counterclaim, whether compulsory or permissive, cross-claim or third-party complaint: Provided, That if any such permissive counterclaim would be barred but for the provisions of this section, such permissive counterclaim may be asserted only in the action tolling the statute of limitations under this section. This section shall be deemed to toll the running of any statute of limitation with respect to any claim for which the statute of limitation has not expired on the effective date of this section, but only for so long as the action tolling the statute of limitations is pending.


WVC 55-2-22 §55-2-22. Effect of bankruptcy.
The running of any statute of limitation shall be tolled for any claim or cause of action for which the prosecution of the same within the period of limitation has been stayed by the provisions of the United States bankruptcy code or by an order entered in a bankruptcy proceeding pending the duration of the stay or the effective period of the order and for a period thereafter of the remaining period of limitation or for one year, whichever is longer.


WVC -2A- ARTICLE 2A. LIMITATION ON FOREIGN CLAIMS.


WVC 55-2A-1 §55-2A-1. "Claim" defined.
As used in this article, "claim" means any right of action which may be asserted in a civil action or proceeding and includes, but is not limited to, a right of action created by statute.


WVC 55-2A-2 §55-2A-2. Period of limitation.
The period of limitation applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever bars the claim.


WVC 55-2A-3 §55-2A-3. Applicability.
The periods of limitation prescribed in this article apply only to a claim upon which action is commenced more than one year after the effective date of this article.


WVC 55-2A-4 §55-2A-4. Construction.
This article shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.


WVC 55-2A-5 §55-2A-5. Citation.
This article may be cited as the "Uniform Statute of Limitations on Foreign Claims Act."


WVC 55-2A-6 §55-2A-6. Repeal.
All laws and parts of laws inconsistent herewith are hereby repealed one year after the effective date of this article.


WVC -3- ARTICLE 3. UNLAWFUL ENTRY OR DETAINER.


WVC 55-3-1 §55-3-1. Issuance of summons.
If any forcible or unlawful entry be made upon any land, building, structure, or any part thereof, or if, when the entry is lawful or peaceable, the tenant shall detain the possession of any land, building, structure, or any part thereof after his right has expired, without the consent of him who is entitled to the possession, the party so turned out of possession, no matter what right or title he had thereto, or the party against whom such possession is unlawfully detained, may, within three years after such forcible or unlawful entry, or such unlawful detainer, sue out of the clerk's office of the circuit court, or of any court of record empowered to try common-law actions, of the county in which the land, building, structure, or some part thereof may be, a summons against the defendant to answer the complaint of the plaintiff that the defendant is in the possession of, and unlawfully withholds from the plaintiff, the premises in question (describing the same with convenient certainty), to the damage of the plaintiff in such sum as the plaintiff shall state; and no other declaration shall be required.


WVC 55-3-2 §55-3-2. Assessment of damages.
If the plaintiff file with the summons a statement of the profits and other damages which he means to demand, and the jury find in his favor, they shall at the same time assess the damages for mesne profits of the premises in suit for any period not exceeding three years previous to the commencement of the action until verdict, including any special damages properly chargeable to the defendant that the plaintiff shall have suffered from detention of the premises, and also the damages for any destruction or waste of the buildings or other property during the same time for which the defendant is chargeable.


WVC 55-3-3 §55-3-3. Return day and service of summons; plea; issue and trial.
The summons may be returnable to, and the case heard and determined at, any term of such court. Such summons shall be made returnable not more than ninety days after its date and shall be served at least ten days before the return day thereof. If the defendant appear, he shall plead to the summons, and his plea shall be "not guilty." Upon this issue, or upon the return of the first or any subsequent summons "executed," if the defendant fail to plead, a jury shall be impaneled to try whether he unlawfully withholds the premises in controversy and to assess the damages, if any, which the plaintiff is entitled to recover for the detention thereof. Such cause shall have precedence for trial over all other civil causes on the docket.


WVC 55-3-4 §55-3-4. Period of limitation; verdict and judgment.
If it appear that the plaintiff was forcibly or unlawfully turned out of the possession, or that it was unlawfully detained from him, unless it also appear that the defendant has wrongfully held or detained the possession for three years before the date of the summons the verdict shall be for the plaintiff for such premises, or such part thereof as may be found to have been so held or detained, and for such damages as the plaintiff shall be entitled to recover for the detention for such premises or such part thereof. When part only of the premises is found for the plaintiff, the verdict shall describe the part so found. In such cases, judgment shall be for the plaintiff. If the verdict be for the defendant as to the whole, judgment shall be for him.


WVC 55-3-5 §55-3-5. Judgment not a bar to action of ejectment; verdict not conclusive of facts in future action; allowance for improvements not precluded.
No such judgment shall bar any action of ejectment between the same parties nor shall any such verdict be conclusive, in any such future action, of the facts therein found; nor shall anything herein prevent a defendant from claiming and having allowed, in a proper case, allowance for improvements as provided in article five of this chapter.


WVC 55-3-6 §55-3-6. Equitable defenses; adverse possession.
All the provisions of sections eleven, twelve, thirteen and sixteen of article four of this chapter shall prevail, and control the respective rights of the parties, in any action brought under this article.


WVC -3A- ARTICLE 3A. REMEDIES FOR WRONGFUL OCCUPATION OF RESIDENTIAL RENTAL PROPERTY.


WVC 55-3A-1 §55-3A-1. Petition for summary relief for wrongful occupation of residential rental property.
(a) A person desiring to remove a tenant from residential rental property may apply for such relief to the magistrate court or the circuit court of the county in which such property is located, by verified petition, setting forth the following:

(1) That he is the owner or agent of the owner and as such has a right to recover possession of the property;

(2) A brief description of the property sufficient to identify it;

(3) That the tenant is wrongfully occupying such property in that the tenant is in arrears in the payment of rent, has breached a warranty or a leasehold covenant, or has deliberately or negligently damaged the property or knowingly permitted another person to do so, and describing such arrearage, breach, or act or omission; and

(4) A prayer for possession of the property.

(b) Previous to the filing of the petition the person shall request from the court the time and place at which the petitioner shall be heard. The court shall fix a time for such hearing, which time shall not be less than five nor more than ten judicial days following such request.

(c) Immediately upon being apprised of the time and place for hearing the petitioner shall cause a notice of the same to be served upon the tenant in accordance with the provisions of Rule 4 of the West Virginia rules of civil procedure or by certified mail, return receipt requested. Such notice shall inform the tenant that any defense to the petition must be submitted in writing to the petitioner within five days of the receipt by the tenant of the notice, and in no case later than the fifth day next preceding the date of hearing. Upon receipt of the return of service or the return receipt as the case may be, evidencing service upon the tenant, the petitioner shall file with the court his petition and such proof of service.


WVC 55-3A-2 §55-3A-2. Defenses available.
In a proceeding under the provisions of this article, a tenant against whom a petition has been brought may assert any and all defenses which might be raised in an action for ejectment or an action for unlawful detainer.


WVC 55 - 3 A- 3 §55-3A-3. Proceedings in court; final order; disposition of abandoned personal property.
(a) If at the time of the hearing there has been no appearance, answer or other responsive pleading filed by the tenant, the court shall make and enter an order granting immediate possession of the property to the landlord.

(b) In the case of a petition alleging arrearage in rent, if the tenant files an answer raising the defense of breach by the landlord of a material covenant upon which the duty to pay rent depends, the court shall proceed to a hearing on such issues.

(c) In the case of a petition alleging a breach by the tenant or damage to the property, if the tenant files an answer raising defenses to the claim or claims set forth in the petition, the court shall proceed to a hearing on such issues.

(d) Continuances of the hearing provided for in this section shall be for cause only and the judge or magistrate shall not grant a continuance to either party as a matter of right. If a continuance is granted upon request by a tenant, the tenant shall be required to pay into court any periodic rent becoming due during the period of such continuance.

(e) At the conclusion of a hearing held under the provisions of subsection (b) or (c) of this section, if the court finds that the tenant is in wrongful occupation of the rental property, the court shall make and enter an order granting immediate possession of the property to the landlord. In the case of a proceeding under subsection (a) of this section, the court may also make a written finding and include in its order such relief on the issue of arrearage in the payment of rent as the evidence may require. The court may disburse any moneys paid into court by the tenant in accordance with the provisions of this section.

(f) The court order shall specify the time when the tenant shall vacate the property, taking into consideration such factors as the nature of the property (i.e., furnished or unfurnished), the possibility of relative harm to the parties, and other material facts deemed relevant by the court in considering when the tenant might reasonably be expected to vacate the property. The order shall further provide that if the tenant continues to wrongfully occupy the property beyond such time, the sheriff shall forthwith remove the tenant, taking precautions to guard against damage to the property of the landlord and the tenant.

(g) In the event an appeal is taken and the tenant prevails upon appeal, the relief ordered by the appellate court shall be for monetary damages only and shall not restore the tenant to possession if the term of the lease has expired, absent an issue of title, retaliatory eviction, or breach of warranty. During the pendency of any such appeal, the tenant is not entitled to remain in possession of the property if the period of the tenancy has otherwise expired.

(h) When an order is issued pursuant to this section granting possession of the property to the landlord, and the tenant fails to remove all personal property by the date and time specified by the order issued pursuant to subsection (f) of this section, the landlord may:

(1) Dispose of the tenant's personal property without incurring any liability or responsibility to the tenant or any other person if the tenant informs the landlord in writing that the personal property is abandoned or if the property is garbage;

(2) Remove and store the personal property after the date and time by which the court ordered the tenant to vacate the property. The landlord may dispose of the stored personal property after thirty days without incurring any liability or responsibility to the tenant or any other person if: (i) The tenant has not paid the reasonable costs of storage and removal to the landlord and has not taken possession of the stored personal property; or (ii) the costs of storage equal the value of the personal property being stored; or

(3) Leave the personal property on the property. The landlord may dispose of personal property left on the property after thirty days without incurring any liability or responsibility to the tenant or any other person if the tenant has not paid the landlord the reasonable costs of leaving the personal property on the landlord's property and has not taken possession of the personal property.

(i) Notwithstanding the provisions of subsection (h) of this section, if the personal property is worth more than three hundred dollars and was not removed from the property or place of storage within thirty days with the required fees paid as provided in subsection (h) of this section, the landlord shall store the personal property for up to thirty additional days if the tenant or any person holding a security interest in the abandoned personal property informs the landlord of their intent to remove the property: Provided, That the tenant or person holding a security interest in the personal property pays the landlord the reasonable costs of storage and removal.


WVC 55 - 3 B- ARTICLE 3B. REMEDIES FOR WRONGFUL OCCUPATION OF FACTORY-BUILT HOME SITE.


WVC 55 - 3 B- 1 §55-3B-1. Definitions.
For the purposes of this article, unless expressly stated otherwise:

(a) "Factory-built home" has the same meaning given to that term in West Virginia code section two, article fifteen, chapter thirty-seven of this code.

(b) "Factory-built home site" means a parcel of land provided for the placement of a factory-built home for occupancy as a residence whether or not in a factory-built home community. A factory-built home site is not residential rental property for the purposes of article three-a of this chapter.

(c) "Good cause" means:

(1) The tenant is in arrears in the payment of periodic payments or other charges related to the tenancy;

(2) The tenant has breached a material term of a written rental agreement or repeatedly breached other terms of a written rental agreement including those agreements required in section three, article fifteen, chapter thirty-seven of this code;

(3) Where there is no written agreement, or where the written agreement does not cover the subject matter of a warranty or leasehold covenant, the tenant breached a material term of a warranty or leasehold covenant or repeatedly breached other terms of a warranty of leasehold covenant;

(4) The tenant has deliberately or negligently damaged the property or knowingly permitted another person to do so.

(d) "Section" means a unit of a factory-built home which is transported and delivered as a whole and which contains some or all of the indoor living area.


WVC 55 - 3 B- 2 §55-3B-2. Tenancy of factory-built home site.
(a) The tenancy of the site of a factory-built home that is comprised of one section and that is not subject to a written agreement is from month to month. The tenancy of the site of a factory-built home that is comprised of two or more sections that is not subject to a written agreement is from year to year.

(b) The tenancy of a factory-built home site that has placed on it a factory-built home that is comprised of one section, other than a camping or travel trailer, may not be terminated by the landlord until twelve months after the tenancy began except for good cause. The tenancy of a factory-built home site that has placed on it a factory-built home that is comprised of two or more sections may not be terminated by the landlord until five years after the tenancy began except for good cause. A written agreement may provide that the tenant may not terminate the tenancy for the same or greater periods of time. A written agreement may provide that the landlord may not terminate the tenancy for greater periods of time.

(c) For a month-to-month or year-to-year tenancy or a tenancy that is created by a written agreement for a definite period of time, the tenancy does not terminate at the end of the month, year or stated period of time unless either party gives timely notice as required in section three of this article. If no notice is given and if no new agreement is made, the tenancy of a factory-built home site that is comprised of one section becomes a month-to-month tenancy and the tenancy of a factory-built home that is comprised of two or more sections becomes a year-to-year tenancy.


WVC 55 - 3 B- 3 §55-3B-3. Termination of tenancy.
(a) Except for termination for good cause, the tenancy of a factory-built home site may be terminated by either party only by giving at least three months' notice in writing to the other of his or her intention to terminate the tenancy. When such notice is to the tenant, it may be served upon the tenant or upon anyone holding under the tenant the leased premises or any part of the leased premises. When it is by the tenant, it may be served upon anyone who at the time owns the premises, in whole or in part, or the agent of the owner or according to the common law. If the termination is for good cause, no notice requirements other than those provided in sections four and six of this article may be imposed.

(b) Unless the landlord is changing the use of the site, if a tenancy is ended by the landlord at the later of its stated term or at the end of the period set out in subsection (b), section two of this article, without good cause, the owner may not prevent the sale of the factory-built home in place to another tenant who meets the standards and criteria in effect for new tenants prior to the termination of the tenancy.


WVC 55 - 3 B- 4 §55-3B-4. Petition for summary relief for wrongful occupation of residential rental property.
(a) A person desiring to remove a tenant and factory-built home from a factory-built home site may apply for such relief to the magistrate court or the circuit court of the county in which such property is located, by verified petition, setting forth the following:

(1) That he is the owner or agent of the owner and as such has a right to evict the tenant and have the factory-built home of the tenant removed;

(2) A brief description of the factory-built home site sufficient to identify it;

(3) That the tenant is wrongfully occupying such property in that the tenant is:

(A) Holding over after having been given proper notice of termination of tenancy, whether or not the tenant has continued to pay and the landlord has accepted rent; or

(B) The landlord has good cause; and

(4) A prayer for eviction of the tenant and removal of the tenant's factory-built home.

(b) Previous to the filing of the petition the person shall request from the court the time and place at which the petitioner shall be heard. The court shall fix a time for such hearing, which time shall not be less than five nor more than ten judicial days following such request.

(c) Immediately upon being apprised of the time and place for hearing the petitioner shall cause a notice of the same to be served upon the tenant in accordance with the provisions of rule 4 of the West Virginia rules of civil procedure or by certified mail, return receipt requested. Such notice shall inform the tenant that any defense to the petition must be submitted in writing to the petitioner within five days of the receipt by the tenant of the notice and in no case later than the fifth day next preceding the date of hearing. Upon receipt of the return of service or the return receipt as the case may be, evidencing service upon the tenant, the petitioner shall file with the court his petition and such proof of service.


WVC 55 - 3 B- 5 §55-3B-5. Defenses available.
In a proceeding under the provisions of this article, a tenant against whom a petition has been brought may assert any and all defenses which might be raised in an action for ejectment or an action for unlawful detainer or provided by this article or article fifteen, chapter thirty-seven of this code.


WVC 55 - 3 B- 6 §55-3B-6. Proceedings in court; final order; disposition of abandoned personal property.
(a) If at the time of the hearing there has been no appearance, answer or other responsive pleading filed by the tenant, the court shall make and enter an order evicting the tenant and ordering the tenant to have the factory-built home removed.

(b) In the case of a petition alleging good cause or holding over after proper termination of a tenancy, if the tenant files an answer raising the defense of breach by the landlord of a material covenant upon which the tenant's duties depend or other defenses to the claim or claims set forth in the petition, the court shall proceed to a hearing on such issues.

(c) Continuances of the hearing provided for in this section shall be for good cause only and the judge or magistrate shall not grant a continuance to either party as a matter of right. If a continuance is granted upon request by a tenant, the tenant shall be required to pay into court any periodic rent becoming due during the period of such continuance.

(d) At the conclusion of the hearing, if the court finds that the landlord is entitled to evict the tenants and have the factory-built home of the tenants removed, the court shall make and enter an order evicting the tenants and ordering the tenants to have the factory-built home removed. In the case of a proceeding pursuant to subsection (a) of this section, the court may also make a written finding and include in its order such relief on the issue of arrearage in the payment of periodic payments or other agreed charges related to the tenancy as the evidence may require. The court may disburse any moneys paid into court by the tenant in accordance with the provisions of this section.

(e) The court order shall specify the time when the tenant shall vacate the property, taking into consideration such factors as the nature of the factory-built home, the possibility of relative harm to the parties and other material facts deemed relevant by the court in considering when the tenant might reasonably be expected to vacate the property. The court shall not order the tenant to vacate the premises in less than one month unless the tenant refuses or fails to pay rent for that period in advance as it becomes due or unless the court finds that the tenant has deliberately or negligently damaged the property or the property of other tenants or materially threatened or harmed the quiet enjoyment of the property of other tenants or neighbors or knowingly permitted another person to do so. The court shall not order the tenant to remove the factory-built home in less than three months unless the tenant refuses or fails to pay rent in advance as it becomes due for that period or unless the court finds that the presence of the factory-built home poses an imminent threat to the health or safety of other tenants or neighbors: Provided, That the court may order the home to be removed in not less than thirty days if the factory-built home is a single section and the tenant had held over after having been given notice pursuant to section three of this article. The order shall further provide that if the tenant continues to wrongfully occupy the property beyond such time or if the tenant refuses or fails to remove the factory-built home in the time required, the landlord may apply for a writ of possession and the sheriff shall forthwith remove the tenant, taking precautions to guard against damage to the property of the landlord and the tenant.

(f) In the event an appeal is taken and the tenant prevails upon appeal, and if the term of the lease has expired and proper termination notice was given pursuant to section three of this article, absent an issue of title, retaliatory eviction or breach of warranty, the relief ordered by the appellate court shall be for monetary damages only and shall not restore the tenant to possession. During the pendency of any such appeal, if the period of the tenancy has otherwise expired and proper termination notice was given pursuant to section three of this article, the tenant is not entitled to remain in possession of the property.

(g) When an order is issued pursuant to this section evicting the tenant and ordering the tenant to remove the factory-built home and the tenant fails to remove the factory-built home by the date specified by the order issued pursuant to subsection (e) of this section, the landlord may:

(1) Dispose of the tenant's factory-built home without incurring any liability or responsibility to the tenant or any other person if the tenant informs the landlord in writing that the tenant is abandoning the factory-built home;

(2) Remove and store the factory-built home after the date and time by which the court ordered the tenant to remove the factory-built home. The landlord may sell the stored factory-built home after thirty days without incurring any liability or responsibility to the tenant or any other person if: (i) The tenant has not paid the reasonable costs of storage and removal to the landlord and has not taken possession of the stored factory-built home; or (ii) the costs of storage equal the value of the factory-built home being stored; or

(3) Leave the factory-built home on the property. The landlord may sell the factory-built home left on the property after thirty days without incurring any liability or responsibility to the tenant or any other person if the tenant has not paid the landlord the reasonable costs of leaving the factory-built home on the landlord's property and has not taken possession of the factory-built home.

(h) The sale shall be conducted and the proceeds distributed pursuant to article nine, chapter forty-six of this code as if the landlord became the holder of a security interest on the day the tenant was to have the factory-built home removed from the site except that the landlord shall have first priority to recover unpaid rent and may require as a condition of the sale that the buyer post security or place in escrow the cost of moving the factory-built home from the site.

(i) When an order is issued pursuant to this section granting possession of the property to the landlord and the tenant removes the factory-built home, but fails to remove all other personal property by the date and time specified by the order issued pursuant to subsection (e) of this section, the landlord may:

(1) Dispose of the tenant's personal property without incurring any liability or responsibility to the tenant or any other person if the tenant informs the landlord in writing that the other personal property is abandoned or if the property is garbage;

(2) Remove and store the other personal property after the date and time by which the court ordered the tenant to vacate the property. The landlord may dispose of the stored personal property after thirty days without incurring any liability or responsibility to the tenant or any other person if: (i) The tenant has not paid the reasonable costs of storage and removal to the landlord and has not taken possession of the stored personal property; or (ii) the costs of storage equal the value of the personal property being stored; or

(3) Leave the personal property on the property. The landlord may dispose of personal property left on the property after thirty days without incurring any liability or responsibility to the tenant or any other person if the tenant has not paid the landlord the reasonable costs of leaving the personal property on the landlord's property and has not taken possession of the personal property.

(j) Notwithstanding the provisions of subsections (g) and (i) of this section, if the personal property is worth more than three hundred dollars and was not removed from the property or place of storage within thirty days with the required fees paid as provided in subsection (i) of this section, or if the factory-built home was not removed within thirty days with the required fees paid as provided in subsection (g) of this section, the landlord shall store the personal property or factory-built home for up to thirty additional days if the tenant or any person holding a security interest in the abandoned personal property or factory-built home informs the landlord of their intent to remove the property: Provided, That the tenant or person holding a security interest in the personal property pays the landlord the reasonable costs of storage and removal.


WVC 55 - 3 B- 7 §55-3B-7. Waiver.
A tenant's rights under this article may not be waived by agreement.


WVC -4- ARTICLE 4. EJECTMENT.


WVC 55-4-1 §55-4-1. When ejectment a proper remedy.
The action of ejectment is retained and may be brought as heretofore, subject to the provisions hereinafter contained. It may also be brought in the same cases in which a writ of right might have been brought prior to the first day of July, in the year eighteen hundred and fifty, in the state of Virginia, and by any person claiming real estate in fee or for life, or for years, either as heir, devisee, purchaser, or otherwise.


WVC 55-4-2 §55-4-2. Venue
Every such action shall be brought in the circuit court, or any other court given by any statute concurrent jurisdiction to try actions of ejectment, of the county in which the real estate, or some part thereof, is.


WVC 55-4-3 §55-4-3. Interest of plaintiff.
No person shall bring such action unless he has, at the time of commencing it, a subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or some share, interest, or portion thereof.


WVC 55-4-4 §55-4-4. Parties defendant.
If the premises be occupied, the occupant shall be named defendant in the declaration; and whether they be occupied or not, any person exercising acts of ownership thereon, or claiming title thereto, or any interest therein, at the commencement of the action, may also be named as defendant in the declaration. If a lessee be made defendant without joining his landlord, such landlord may appear and be made defendant with, or in place of his lessee.


WVC 55-4-5 §55-4-5. How action commenced.
The action shall be commenced by the service of a declaration in which the name of the real claimant shall be inserted as plaintiff; and all the provisions of law concerning a lessor of a plaintiff shall apply to such plaintiff.


WVC 55-4-6 §55-4-6. Declaration.
It shall be sufficient for the plaintiff to aver in his declaration that, on some day specified therein (which shall be after his title accrued), he was possessed of the premises claimed, and that, being so possessed thereof, the defendant afterwards, on some day to be stated, entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, or exercises acts of ownership thereon or claims title thereto some interest therein, to his damage, such sum as the plaintiff shall state. The plaintiff shall also state whether he claims in fee or for his life, or for the life of another, or for years, specifying such lives, or the duration of such terms; and when he claims an undivided share or interest, he shall state the same. The premises shall be described in the declaration with convenient certainty, so that from such description possession thereof may be delivered.


WVC 55-4-7 §55-4-7. Joinder of parties plaintiff.
The declaration may contain several counts, and several parties may be named as plaintiffs jointly in one count and separately in others.


WVC 55-4-8 §55-4-8. Service of declaration and notice; order of publication.
To such declaration there shall be subjoined a written or printed notice by the plaintiff, or his attorney, addressed to the defendant and notifying him that such declaration will be filed on some specified rule day, in the clerk's office of the court in which the action is to be prosecuted, or in such court on some day named at the next term thereof, and that if he fails to appear and plead thereto, within the time required by law, judgment will be given against him. Such declaration and notice may be served in the same manner as other notices may by law be served. But if the defendant do not reside in the county where the action is brought, or cannot be found therein, such service may be made in any part of the state where he may reside or be found; and if he do not reside in the state, or cannot be found therein, so that such service cannot be made, an order of publication, as provided by law in other cases, may be awarded against him, and all the laws in force in relation to judgments and decrees obtained on publication and proceedings in such cases shall be applicable to the proceedings and judgment had and rendered in such action on such publication.


WVC 55-4-9 §55-4-9. Rule to plead; default judgment.
Upon filing the declaration and notice, with proof of the service thereof as aforesaid, the plaintiff shall be entitled to a rule upon the defendant to appear and plead at the next rule day, if the same be filed at rules, or if filed in court, to appear and plead within such time as shall be prescribed by the court; and if the defendant fail so to appear and plead, his default shall be entered and judgment given against him.


WVC 55-4-10 §55-4-10. Plea or demurrer; issue on plea; evidence admissible.
The defendant may demur to the declaration, as in personal actions, or plead thereto, or do both. But he shall plead the general issue only, which shall be that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff in the declaration. Upon such plea, the defendant may give in evidence any matter which, if pleaded in the former writ of right, would have barred the action of the plaintiff.


WVC 55-4-11 §55-4-11. Equitable title of vendee as defense.
A vendor, or any person claiming under him, shall not at law recover against a vendee, or those claiming under him, lands sold by such vendor to such vendee, when there is a writing stating the purchase, and the terms thereof, signed by the vendor or his agent.


WVC 55-4-12 §55-4-12. Payment or performance by mortgagor as defense.
The payment of the whole sum, or the performance of the whole duty, or the accomplishment of the whole purpose, which any mortgage or trust deed may have been made to secure or effect, shall prevent the grantee or his heirs from recovering at law, by virtue of such mortgage or trust deed, property thereby conveyed, whenever the defendant would in equity be entitled to a decree revesting the legal title in him without condition.


WVC 55-4-13 §55-4-13. Notice of equitable defense; resort to equity not barred.
A defendant shall not be allowed to avail himself of either of the two preceding sections, unless notice in writing of such defense shall be filed with his plea. Whether he shall or shall not make or attempt such defense, he shall not be precluded from resorting to equity for any relief to which he would have been entitled, if the said sections had not been enacted.


WVC 55-4-14 §55-4-14. Consent rules not to be used; what plaintiff must prove generally.
The consent rules shall not be used. The plaintiff need not prove an actual entry on or possession of the premises demanded, or receipt of any profits thereof, nor any lease, entry or ouster, except as hereinafter provided. But it shall be sufficient for him to show a right to the possession of the premises at the time of the commencement of the suit.


WVC 55-4-14a §55-4-14a. When proof required of location of reservations or exceptions contained in instruments of title.
In any action, suit or other judicial proceeding involving the title to land embraced in the exterior boundaries of any patent, deed, or other writing, which reserves or accepts one or more parcels of land from the operation of such patent, deed or other writing, if there be no claim made by a party to the proceedings that the land in controversy, or any part thereof, lies within such reservation or exception, such patent, deed, or other writing, shall be construed, and shall have the same effect, as if it contained no such reservation or exception; and if any party to such proceeding claims that the land in controversy, or any part thereof, lies within such reservation or exception, the burden shall be upon him to prove the fact, and all land not shown by a preponderance of the evidence to lie within such reservation or exception shall be deemed to lie without the same.

This section shall apply in cases involving the right to the proceeds of any such land when condemned or sold, as well as in cases where the title to land is directly involved, and shall apply in any case in which the title to any part of the land, or its proceeds, but for this section, would or might be in the state.


WVC 55-4-15 §55-4-15. What plaintiff must prove against cotenant.
If the action be by one or more tenants in common, or joint tenants, or coparceners, against their cotenants, the plaintiff shall be bound to prove actual ouster or some other act amounting to a total denial of the plaintiff's right as cotenant.


WVC 55-4-16 §55-4-16. Extent of possession under patent, deed or other writing.
In a controversy affecting land, when a person claiming under a patent, deed or other writing shall enter upon and take possession of any part of the land in controversy under such patent, deed or other writing, for which some other person has the better title, such adversary possession under such patent, deed or other writing shall be taken and held to extend to the boundaries embraced or included by such patent, deed or other writing, unless the person having the better title shall have actual adverse possession of some part of the land embraced by such patent, deed or other writing.


WVC 55-4-17 §55-4-17. Verdict as to parties.
If the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs or such of them as appear to have the right to the possession of the premises, or any part thereof, and against such of the defendants as were in possession thereof, or exercised acts of ownership thereon, or claimed title thereto or any interest therein, at the commencement of the action. Where any plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendants. If the action be against several defendants, and a joint possession of all be proved, and the plaintiff be entitled to a verdict, it shall be against all, whether they plead separately or jointly.


WVC 55-4-18 §55-4-18. Verdict as to premises.
When the right of the plaintiff is proved to all the premises claimed, the verdict shall be for the premises generally, as specified in the declaration; but if it be proved to only a part or share of the premises, the verdict shall specify such part particularly as the same is proved, and with the same certainty of description as is required in the declaration. If the verdict be for an undivided share or interest in the premises claimed, it shall specify the same; and if for an undivided share or interest of a part of the premises, it shall specify such share or interest, and describe such part as before required. The verdict shall also specify the estate found in the plaintiff, whether it be in fee or for life, stating for whose life, or whether it be a term of years, and specifying the duration of such term.


WVC 55-4-19 §55-4-19. Judgment; assignment of dower.
The judgment for the plaintiff shall be that he recover the possession of the premises, according to the verdict of the jury, if there be a verdict; or if the judgment be by default, or on demurrer, according to the description thereof in the declaration. If the action be brought to recover dower which has not been assigned before the commencement of such action, the court in which the judgment is rendered may have dower assigned by commissioners appointed for that purpose. If the action be against several defendants, and it appear on the trial that any of them occupy distinct parcels, in severalty or jointly, the plaintiff may recover several judgments against them for the parcels so held by one or more of the defendants separately from others. The plaintiff may recover any specific or any undivided part or share of the premises, though it be less than he claimed in the declaration.


WVC 55-4-20 §55-4-20. Change in plaintiff's right pending action; additional party plaintiff.
If the right or title of the plaintiff in ejectment be that of a tenant for life or for a term of years, and such right or title shall expire after the commencement of the action, but before trial, the verdict shall be according to the fact, and judgment shall be entered for his damages sustained by the withholding of the premises by the defendant; and as to the premises claimed, the judgment shall be that the defendant go thereof without day. But the right of the plaintiff to recover in the action shall not be affected or impaired by reason of any conveyance or transfer of the legal title to the premises in controversy, by or from the plaintiff to another, pending the action. And where any such conveyance or transfer is made, the person in whom the legal title to such premises is thereby vested may, at any time before trial, on motion of either party, be made a party plaintiff in the action, either with or without an amendment of the declaration, as the court may deem proper; and in such case, if the plaintiff recover, the verdict and judgment may be for all the plaintiffs, or for such of them as may be entitled to the possession of the premises at the time of the trial.


WVC 55-4-21 §55-4-21. Mesne profits and damages.
If the plaintiff file with his declaration a statement of the profits and other damages which he means to demand, and the jury find in his favor, they shall at the same time, unless the court otherwise order, assess the damages for mesne profits of the land for any period not exceeding five years previous to the commencement of the suit until the verdict, and also the damages for any destruction or waste of the buildings or other property during the same time for which the defendant is chargeable.


WVC 55-4-22 §55-4-22. How damages assessed.
If there be no issue of fact tried in the cause, and judgment is to be rendered for the plaintiff on demurrer, default, or otherwise, such damages shall be assessed by the court, unless either party shall move to have them assessed by a jury, or the court shall think proper to have them so assessed, in which case a jury shall be impaneled to assess them.


WVC 55-4-23 §55-4-23. Claim for improvements.
If the defendant intends to claim allowance for improvements made upon the premises by himself or those under whom he claims, he shall file with his plea, or at a subsequent time before the trial (if for good cause allowed by the court), a statement of his claim therefor, in case judgment be rendered for the plaintiff.


WVC 55-4-24 §55-4-24. Balance as between damages and improvements.
In such case, the damages of the plaintiff and the allowance to the defendant for improvements shall be estimated and the balance ascertained, and judgment therefor rendered, as prescribed in article five of this chapter.


WVC 55-4-25 §55-4-25. Postponing assessment of damages and allowance for improvements.
On motion of either party, the court may order the assessment of such damages and allowance to be postponed until after the verdict on the title is recorded.


WVC 55-4-26 §55-4-26. Effect of judgment.
Any such judgment in an action of ejectment shall be conclusive as to the right of the possession established in such action upon the party against whom it is rendered, and, subject to the provisions of section two, article eleven of this chapter, against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, except as hereinafter mentioned.


WVC 55-4-27 §55-4-27. Effect of judgment as to persons under disability.
If any person against whom such judgment is rendered shall be at the time of the judgment an infant, or insane, the judgment shall be no bar to an action commenced within three years after the removal of such disability.


WVC 55-4-28 §55-4-28. Right to recover mesne profits and damages against person other than defendant.
Nothing in this article shall prevent the plaintiff from recovering mesne profits, or damages done to the premises, from any person other than the defendants, who may be liable to such action.


WVC 55-4-29 §55-4-29. Default or surrender by tenant for life.
If any tenant for life of land make default or surrender, the heirs, or those entitled to the remainder, may, before judgment, be admitted to defend their right, or after judgment may assert their right, without prejudice from such default or surrender.


WVC 55-4-30 §55-4-30. Right of entry not tolled by descent cast.
The right of entry on, or action for, land shall not be tolled or defeated by descent cast.


WVC 55-4-31 §55-4-31. Petition for ascertainment and designation of boundary line or lines of real estate.
Any person having a subsisting interest in real estate and a right to its possession, or to the possession of some share, interest or portion thereof, upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court, the true boundary line or lines to such real estate, as to one or more of the coterminous landowners. Petitioner in his petition shall state whether his interest is in fee, for life, for a term or otherwise, and shall describe with reasonable certainty said real estate and the boundary line or lines thereof which he seeks to establish. A plat showing such real estate and boundary line or lines, filed with the petition, may serve the purposes of such description.

The petitioner shall make defendants to said petition all persons having a present interest in the boundary line or lines sought to be ascertained and designated, and the case shall be commenced by serving a copy of the petition upon the defendant or defendants. If the petition shall have been served on the defendant or defendants and filed in the clerk's office not less than thirty days preceding the first day of a term of court the case shall be matured for trial at said term. The defendant or defendants may file an answer to said petition which shall state the grounds of defense, if any, and the parties shall be deemed to be at issue, which issue shall be the true boundary line or lines of such real estate. The trial shall be conducted as other trials at law, and the same rules of evidence shall apply and the same defenses may be made as in other actions at law. A trial by jury may be waived by consent of the parties, and the case be tried by the court. Counsel for the petitioner shall have the right to open and conclude the argument. The judgment of the court shall be recorded in the law order book, and in the current deed book in the office of the clerk of the county court, and indexed in the names of the parties.

The judge of the court in term time or vacation may direct such surveys to be made as he may deem necessary. The judgment of the court, unless reversed, shall forever settle, determine, and designate the true boundary line or lines in question, and be binding upon the parties, their heirs, devisees, and assigns. The judgment may be enforced in the same manner as a judgment in an action of ejectment. A writ of error from the supreme court of appeals shall lie to such judgment in like manner as in a common-law action.

In a proceeding under this section, no claim for rents, profits or damages shall be considered.


WVC 55-4-31a §55-4-31a. Resolution of boundary disputes; corrective deeds; petition for ascertainment and designation of boundary line or lines of real estate.
Where a survey has been made to establish the boundary to a parcel of land and there is a dispute between two or more owners of the land so surveyed as to the location of the boundary as located by such surveyor, the surveyor may make or cause to be made a review of the appropriate deeds of the parcels of land involved to determine the correct property description and location of the line.

If there is not sufficient evidence at the site of the parcels involved to ascertain the true location of the boundary line, the parties to the dispute may secure the judgment and knowledge of another licensed land surveyor or surveyors or registered professional engineer or engineers as to the true location. If an agreement is reached between all of the owners of the land involved in the dispute, then a straw deed or deed of correction shall be made, with the signatures of all parties affixed thereto.

If after the intervention of the additional surveyor, surveyors, engineer or engineers, there still exists a dispute as to the location of the boundary line, then any party may bring an action pursuant to section thirty-one of this article in the circuit court of the county where the land is located to ascertain the true location of the boundary line: Provided, That in any such action no party to such action shall be permitted to introduce into evidence any agreement with respect to the boundary dispute between two or more parties to the action if such agreement is not embodied in a corrective or straw deed executed by the parties.

Nothing in this section shall prevent or be deemed a condition precedent to the institution of an action under section thirty-one of this article.


WVC -5- ARTICLE 5. ALLOWANCE FOR IMPROVEMENTS.


WVC 55-5-1 §55-5-1. Method of asserting claim.
Any defendant against whom a decree or judgment shall be rendered for land, where no assessment of damages has been made under the preceding article, may, at any time before the execution of the decree or judgment, present a petition to the court rendering such decree or judgment, stating that he or those under whom he claims, while holding the premises under a title believed by him or them to be good, have made permanent improvements thereon, and praying that he may be allowed for the same the fair and reasonable value thereof; and thereupon the court, if satisfied of the probable truth of the allegation, shall suspend the execution of the judgment or decree, and impanel a jury to fix and assess the damages of the plaintiff (if any) and the value of the improvements (if any) so made by the defendant.


WVC 55-5-2 §55-5-2. Valuation of improvements made by defendant before notice of title.
If the jury be satisfied that the defendant, or those under whom he claims, made on the premises, at a time when there was reason to believe the title good under which he or they were holding such premises, permanent and valuable improvements, they shall estimate in his favor the value of such improvements as were so made before notice in writing of the title under which the plaintiff claims, as they are at the time such valuation is made.


WVC 55-5-3 §55-5-3. Liability of defendant for annual value of premises and damages -- Assessment of damages for plaintiff.
The jury, in fixing and assessing such value and damages, shall estimate against the defendant the annual value of such part of the premises (if any) as was improved and in a state fit and prepared for cultivation at the time he took possession thereof, and also the damages for waste or other injury to the premises committed by the defendant, and shall credit him with the value of all the improvements made thereon, but no charge shall be made against the tenant for the use of any improvements made upon the land by him, or for the use of any part of the land cleared by him.


WVC 55-5-4 §55-5-4. Same -- For what period defendant liable.
The defendant shall not be liable for such annual value or damages for any period longer than five years before the action or suit was brought, except that, if the sum allowed by the jury for the improvements exceed that allowed to the plaintiff for the annual value and damages of the premises under section three of this article, the jury may then estimate against the defendant such annual value and damages for the time he has used and occupied the same before the said five years.


WVC 55-5-5 §55-5-5. Verdict for balance after damages set off against improvements; entry of judgment.
After setting off the amount allowed the plaintiff (if any) against the amount allowed to the defendant for improvements (if any), the jury shall find a verdict for the plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict.


WVC 55-5-6 §55-5-6. Judgment lien.
Any such balance due to the defendant shall constitute a lien upon the land recovered by the plaintiff until the same shall be paid.


WVC 55-5-7 §55-5-7. Reimbursement of life tenant by remainderman or reversioner.
If the plaintiff claim only on an estate for life in the land recovered, and pay any sum allowed to the defendant for improvements, he or his personal representative may recover, at the determination of his estate, from the remainderman or reversioner, the value of such improvements, as they then exist, not exceeding the amount so paid by him, and shall have a lien therefor on the premises, in like manner as if they had been mortgaged for the payment thereof, and may keep possession of such premises until it be paid.


WVC 55-5-8 §55-5-8. Exception as to mortgagees and trustees.
Nothing in this article, nor anything in article four of this chapter, concerning rents, profits and improvements, shall extend or apply to any suit brought by a mortgagee, or a trustee in a trust deed to secure creditors, his heirs or assigns, against a mortgagor, or grantor in such trust deed, his heirs or assigns, for the recovery of the mortgaged premises or of the land conveyed by such trust deed.


WVC 55-5-9 §55-5-9. Plaintiff may require his estate only to be valued -- By entry on record.
When the defendant shall claim allowance for improvements, as before provided, the plaintiff may, by an entry on the record, require that the value of his estate in the premises, without the improvements, shall also be ascertained.


WVC 55-5-10 §55-5-10. Same -- How estimated.
The value of the premises, in such case, shall be estimated as it would have been at the time of the inquiry, if no such improvements had been made on the premises by the tenant or any person under whom he claims, and shall be ascertained in the manner hereinbefore provided for estimating the value of improvements.


WVC 55-5-11 §55-5-11. Same -- Relinquishment of estate to defendant at value ascertained.
The plaintiff in such case, if judgment is rendered for him, may, at any time during the same term, or before judgment or decree is rendered on the assessment of the value of the improvements, in person or by his attorney in the cause, enter on the record his election to relinquish his estate in the premises to the defendant at the value so ascertained, and the defendant shall thenceforth hold all the estate that the plaintiff had therein at the commencement of the suit, provided he pay therefor such value, with interest, in the manner in which the court may order it to be paid.


WVC 55-5-12 §55-5-12. Same -- Same -- How value paid; sale of land for failure to make payments; deficiency.
The payments shall be made to the plaintiff, or into court for his use, and the land shall be bound therefor, and if the defendant fail to make such payments within or at the time limited therefor, respectively, the court may order the land to be sold, and the proceeds applied to the payment of such value and interest, and the surplus, if any, to be paid to the defendant; but if the proceeds be insufficient to satisfy such value and interest, the defendant shall not be bound for the deficiency.


WVC 55-5-13 §55-5-13. Same -- Same -- Disposition of value when party under disability.
If the party by or for whom the land is claimed in the suit be a minor or insane, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein.


WVC 55-5-14 §55-5-14. Same -- Same -- Eviction of defendant; recovery of amount paid.
If the defendant, or his heirs or assigns, shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff, or his representatives, the amount so paid for the premise, as so much money had and received by such plaintiff, in his lifetime, for the use of such person, with lawful interest thereon from the time of such payment.


WVC -6- ARTICLE 6. RECOVERY OF PERSONAL PROPERTY.


WVC 55-6-1 §55-6-1. Immediate recovery of possession of personal property; notice and prejudgment hearing.
If the plaintiff in a civil action, whether in a circuit court or magistrate court, for the recovery of specific goods, chattels, or intangible personal property, shall demand immediate possession thereof, a prejudgment hearing shall be held in not less than five nor more than ten days after service upon the defendant of the summons, a verified complaint describing said personal property, and a notice of the time, place, and purpose of the prejudgment hearing. At the prejudgment hearing an inquiry shall be held to determine: (a) The nature of the right or contract under which the plaintiff claims a right to immediate possession; and (b) the nature of the defendant's right to retain possession thereof.


WVC 55-6-2 §55-6-2. Finding of fact by court or magistrate; bond; order for seizure.
If the court or magistrate shall conclude, upon the basis of the evidence adduced at said prejudgment hearing, that there is a substantial probability that the plaintiff will prevail upon trial of the action upon the merits, the court or magistrate may order that, upon the plaintiff's execution of a bond, with good security to be approved by the clerk of the circuit court or the magistrate and delivered to said clerk or magistrate in a penalty at least double the value of the property claimed, payable to the defendant and with condition to pay all costs and damages which may be awarded against the plaintiff, or sustained by any person by reason of said civil action and to have the property so claimed forthcoming to answer any judgment or order of the court or magistrate in said civil action, the property claimed, or any part thereof described or designated by the court or magistrate, be seized by and taken into the possession of a designated officer.


WVC 55-6-3 §55-6-3. Seizure of property by officer.
It shall be the duty of the officer to whom any such summons or order is delivered to proceed forthwith to execute the same; and he may, if necessary, break open and enter any house or other inclosure in which such property may be, in order to seize the same.


WVC 55-6-4 §55-6-4. Return of property to defendant upon execution of bond.
The defendant in any such action may have the property taken possession of by such officer, by virtue of such summons or order, returned to him at any time within three days after such taking, upon executing a bond with good security, to be approved by such officer, payable to the plaintiff, in a penalty at least double the value of such property, with condition to pay all costs and damages which may be awarded against him in such action, and all damages which may be sustained by any person by reason of the return of such property to him, and to have the property forthcoming to answer any judgment or order of the court or justice respecting the same made at any time during the pendency of the action; which bond shall be delivered to such officer, and by him returned to the office of the clerk or justice who issued such summons or order. Upon the reception of such bond by the officer aforesaid, he shall forthwith return the property taken by him to the defendant; but in case no such bond be delivered to such officer within such three days, the property shall be delivered by an officer to the plaintiff.


WVC 55-6-5 §55-6-5. Exception to sufficiency of sureties.
Either party may, upon reasonable notice to the other, except to the sufficiency of the sureties in the bond of such other party and the court, or the judge thereof in vacation, or the justice before whom such action is pending, may, upon the hearing of such exceptions, make such order in the premises as may seem just and equitable.


WVC 55-6-6 §55-6-6. Verdict and judgment.
Upon the final trial of any such action, if the verdict be for the plaintiff, and he be not already in the possession of the property claimed, the judgment shall be that he recover the possession of such property, if a recovery thereof can be had; and if not, that he recover the value thereof as found by such verdict; and, in either event, that he recover the damages assessed by the jury for the detention of such property, and his costs in such action. And it shall be the duty of the jury in such cases to ascertain and assess such damages as the plaintiff has sustained by reason of the detention of such property by the defendant. If the plaintiff be already in possession of such property, the judgment shall be that he retain the possession thereof, and for damages and costs, as aforesaid. In case the verdict at such trial be for the defendant, if the plaintiff be in possession of the property claimed, the judgment shall, in like manner, ascertain and assess the damages sustained by the defendant by reason of the detention of such property by the plaintiff and also the value of such property, and judgment shall be entered upon such verdict in all respects as is provided in case the verdict be for the plaintiff. If, on an issue concerning several things in one count, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted; and if the verdict omit price or value, the court may at any time have a jury impaneled to ascertain the same.


WVC 55-6-7 §55-6-7. Execution.
The execution issued in such cases shall conform in all things to the judgment entered therein.


WVC -7- ARTICLE 7. ACTIONS FOR INJURIES.


WVC 55-7-1 §55-7-1. Seduction.
An action for seduction may be maintained, without any allegation of proof of the loss of the service of the female by reason of the defendant's wrongful act.


WVC 55-7-2 §55-7-2. Insulting words.
All words which, from their usual construction and common acceptation, are construed as insults and tend to violence and breach of the peace, shall be actionable. No demurrer shall preclude a jury from passing thereon.


WVC 55-7-3 §55-7-3. Unlawful seizure or attachment.
If the property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the warrant of distress or attachment, recover damages for the wrongful seizure, and also, if the property be sold, for the sale thereof.


WVC 55-7-4 §55-7-4. Action of replevin abolished.
No action of replevin shall be hereafter brought.


WVC 55-7-5 §55-7-5. Action for death by wrongful act.
Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. No action, however, shall be maintained by the personal representative of one who, not an infant, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death. Any right of action which may hereafter accrue by reason of such injury done to the person of another shall survive the death of the wrongdoer, and may be enforced against the executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his personal representative after his death, whether or not the death of the wrongdoer occurred before or after the death of the injured party.


WVC 55-7-6 §55-7-6. By whom action for wrongful death to be brought; amount and distribution of damages; period of limitation.
(a) Every such action shall be brought by and in the name of the personal representative of such deceased person who has been duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, and the amount recovered in every such action shall be recovered by said personal representative and be distributed in accordance herewith. If the personal representative was duly appointed in another state, territory or district of the United States, or in any foreign country, such personal representative shall, at the time of filing of the complaint, post bond with a corporate surety thereon authorized to do business in this state, in the sum of one hundred dollars, conditioned that such personal representative shall pay all costs adjudged against him or her and that he or she shall comply with the provisions of this section. The circuit court may increase or decrease the amount of said bond, for good cause.

(b) In every such action for wrongful death, the jury, or in a case tried without a jury, the court, may award such damages as to it may seem fair and just, and, may direct in what proportions the damages shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution after making provision for those expenditures, if any, specified in subdivision (2), subsection (c) of this section. If there are no such survivors, then the damages shall be distributed in accordance with the decedent's will or, if there is no will, in accordance with the laws of descent and distribution as set forth in chapter forty-two of this code. If the jury renders only a general verdict on damages and does not provide for the distribution thereof, the court shall distribute the damages in accordance with the provisions of this subsection.

(c) (1) The verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.

(2) In its verdict the jury shall set forth separately the amount of damages, if any, awarded by it for reasonable funeral, hospital, medical and said other expenses incurred as a result of the wrongful act, neglect or default of the defendant or defendants which resulted in death, and any such amount recovered for such expenses shall be so expended by the personal representative.

(d) Every such action shall be commenced within two years after the death of such deceased person, subject to the provisions of section eighteen, article two, chapter fifty-five. The provisions of this section shall not apply to actions brought for the death of any person occurring prior to the first day of July, one thousand nine hundred eighty-eight.


WVC 55-7-7 §55-7-7. Compromise of claim for death by wrongful act.
The personal representative of the deceased may compromise any claim to damages arising under section five of this article before or after action brought. What is received by the personal representative under the compromise shall be treated as if recovered by him in an action under the section last mentioned. When the judge acts in vacation, he shall return all the papers in the case, and orders made therein, to the clerk's office of such court. The clerk shall file the papers in his office as soon as received, and forthwith enter the order in the order book on the law side of the court. Such orders, and all the proceedings in vacation, shall have the same force and effect as if made or had in term. Upon approval of the compromise, the court shall apportion and distribute such damages, or the compromise agreed upon, after making provisions for those expenditures, if any, specified in subdivision (2), subsection (c), section six of this article, in the same manner as in the cases tried without a jury.


WVC 55-7-8 §55-7-8. Personal injury action where injuries result in death.
Where an action is brought by a person injured for damage caused by the wrongful act, neglect or default of any person or corporation, and the person injured dies as a result thereof, the action shall not abate by reason of his or her death but, his or her death being suggested, it may be revived in the name of his or her personal representative, and the complaint shall be amended so as to conform to an action under sections five and six of this article, and the case proceeded with as if the action had been brought under said sections. Additionally a separate and distinct cause of action may be brought, and if brought, shall be joined in the same proceeding for damages incurred between the time of injury and death where not otherwise provided for in said sections five and six. In either case there shall be but one recovery for each element of damages: Provided, That nothing in this section shall be construed in derogation of the provisions of section twelve of this article.


WVC 55-7-8a §55-7-8a. Actions which survive; limitations; law governing such actions.
(a) In addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable.

(b) If any such action is begun during the lifetime of the injured party, and within the period of time permissible under the applicable statute of limitations as provided by articles two and two-a of this chapter, (either against the wrongdoer or his personal representative), and such injured party dies pending the action it may be revived in favor of the personal representative of such injured party and prosecuted to judgment and execution against the wrongdoer or his personal representative.

(c) If the injured party dies before having begun any such action and it is not at the time of his death barred by the applicable statute of limitations under the provisions of articles two and two-a of this chapter, such action may be begun by the personal representative of the injured party against the wrongdoer or his personal representative and prosecuted to judgment and execution against the wrongdoer or his personal representative. Any such action shall be instituted within the same period of time that would have been applicable had the injured party not died.

(d) If any such action mentioned in the preceding subsections (a), (b) and/or (c) shall have been begun against the wrongdoer and he or she dies during the pendency thereof, it may be revived against the personal representative of the wrongdoer and prosecuted to judgment and execution.

(e) The applicable provisions of article eight, chapter fifty-six of this code shall govern the actions hereinabove mentioned, with reference to their abatement, revival, discontinuance, reinstatement and substitution of parties.

(f) Nothing contained in this section shall be construed to extend the time within which an action for any other tort shall be brought, nor to give the right to assign a claim for a tort not otherwise assignable.


WVC 55-7-9 §55-7-9. Violation of statutes.
Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages.


WVC 55-7-10 §55-7-10. Trespass abolished; trespass on the case to lie in lieu thereof.
The action of trespass is abolished. In all cases in which an action of trespass could have been maintained an action of trespass on the case shall lie.


WVC 55-7-11 §55-7-11. Suits against unincorporated common carriers.
Where common carriers are not incorporated, any one or more of them may be sued by his or their name or names only, to recover damages for loss of, or injury to, any parcel, package, or person; and such suit shall not abate for the want of joining any of the coproprietors, or copartners.


WVC 55 - 7 - 11 A §55-7-11a. Settlement, release or statement within twenty days after personal injury; disavowal; certain expressions of sympathy inadmissible as evidence.
(a) If a person sustains a personal injury, no person shall within twenty days from the date of the personal injury while the injured person is either: (i) An inpatient in any hospital; or (ii) partially or totally unable to engage in his or her usual trade, profession or occupation:

(1) Negotiate or attempt to negotiate a settlement of any claim for such personal injury with or for and on behalf of the injured person;

(2) Obtain or attempt to obtain from the injured person a partial or general release of liability for such injury; or

(3) Obtain or attempt to obtain any statement, either written or oral, from the injured person for use in negotiating a settlement or obtaining a partial or general release of liability with respect to the personal injury: Provided, That nothing herein shall prohibit a person acting or intending to act for and on behalf of the injured person from obtaining any statement, oral or written, from an injured person upon the express request of the injured person.

Nothing herein shall prevent a person who may be liable for damages on account of the personal injury from making an advance payment of all or any part of his or her liability for the damages; any sum paid during the twenty days by a person liable for damages on account of the personal injury is allowed as full credit against any damages which may be finally determined to be due an injured person.

Any settlement, release of liability or statement entered into, obtained or made in violation of this section may be disavowed by the injured person at any time within one hundred eighty days from the date of the personal injury by executing a written statement of disavowal and thereupon forwarding a copy of the same to the person violating this section, in which event the settlement, release or statement may not be admissible in evidence for any purpose in any court or other proceeding relating to the personal injury, if any consideration paid for the settlement of or the general release of liability for the personal injury, at the time of the forwarding of the copy of the written statement of disavowal, is repaid or returned to the person who paid the consideration.

(b) (1) No statement, affirmation, gesture or conduct of a healthcare provider who provided healthcare services to a patient, expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, to the patient, a relative of the patient or a representative of the patient and which relate to the discomfort, pain, suffering, injury or death of the patient shall be admissible as evidence of an admission of liability or as evidence of an admission against interest in any civil action brought under the provisions of article seven-b, chapter fifty-five of this code, or in any arbitration, mediation or other alternative dispute resolution proceeding related to such civil action.

(2) Terms not otherwise defined in this section have the meanings assigned to them in article seven-b, chapter fifty-five of this code. For purposes of this section, unless the context otherwise requires, "relative" means a spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-brother, half-sister or spouse's parents. The term includes said relationships that are created as a result of adoption. In addition, "relative" includes any person who has a family-type relationship with a patient.


WVC 55-7-12 §55-7-12. Liability of one joint tort-feasor not affected by release to, or accord and satisfaction with, another.
A release to, or an accord and satisfaction with, one or more joint trespassers, or tort-feasors, shall not inure to the benefit of another such trespasser, or tort-feasor, and shall be no bar to an action or suit against such other joint trespasser, or tort-feasor, for the same cause of action to which the release or accord and satisfaction relates.


WVC 55-7-13 §55-7-13. Contribution by joint tort-feasors.
Where a judgment is rendered in an action ex delicto against several persons jointly, and satisfaction of such judgment is made by any one or more of such persons, the others shall be liable to contribution to the same extent as if the judgment were upon an action ex contractu.


WVC 55-7-14 §55-7-14. Liability of visual or sound broadcasting stations for defamatory statements.
The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.

In no event, however, shall any owner, licensee or operator or the agents or employees of any such owner, licensee or operator of such a station or network of stations be held liable for any damages for any defamatory statement uttered over the facilities of such station or network by any legally qualified candidate for public office.


WVC 55-7-15 §55-7-15. Aid to victim of accident and victim of crime; immunity from civil liability.
No person, including a person licensed to practice medicine or dentistry, who in good faith renders emergency care at the scene of an accident or to a victim at the scene of a crime, without remuneration, shall be liable for any civil damages as the result of any act or omission in rendering such emergency care.


WVC 55 - 7 - 16 §55-7-16. Immunity from liability for ski patrol rendering emergency care.
(a) A member in good standing of a national ski patrol system who, without compensation, provides emergency aid or assistance to an injured or ill person at the scene of a ski resort rescue operation, outdoor emergency rescue operation or while otherwise performing ski patrol or while transporting an injured or ill person to a place for transfer to an available emergency medical center or hospital as the result of being on ski patrol, may not be held liable for civil damages for any alleged act or omission which is claimed to have occurred during the rendering of the emergency aid or assistance. The limitation of liability established by the provisions of this section apply to acts or omissions rendered in good faith.

(b) For the purposes of this section, a national ski patrol system is a national organization whose members are volunteers and do not receive compensation and are required to obtain training in safety and emergency medical treatment.

(c) For purposes of this section, the term "compensation" does not include access to a recreational facility, complimentary lift tickets, food, lodging or other gifts or discounts that may be offered or accessible to a person.


WVC 55-7-17 §55-7-17. Aid by trained hazardous substance response personnel; immunity from civil liability; definitions.
No person trained in a qualified program of hazardous substance emergency response certified by the state fire marshal pursuant to rules promulgated by authority of subsection (a), section five-a, article three, chapter twenty-nine of this code, who in good faith renders advice or assistance at the scene of an actual or threatened discharge of any hazardous substance and receives no remuneration for rendering such advice or assistance, is liable for any civil damages as the result of any act or omission in rendering such advice or assistance: Provided, That the exemption from liability for civil damages of this section shall be extended to any such person who receives reimbursement for out-of-pocket expenses incurred in rendering such advice or assistance or compensation from his or her regular employer for the time period during which he or she was actually engaged in rendering such advice or assistance but is not extended to any such person who by his or her act or omission caused or contributed to the cause of such actual or threatened discharge of any hazardous substance.

For the purposes of this section, "hazardous substance" means any "hazardous substance" as defined in chapter eighty-eight, Acts of the Legislature, regular session, one thousand nine hundred eighty-five; any "chemical substances and materials" listed in the rules promulgated by the commissioner of labor pursuant to section eighteen, article three, chapter twenty-one, of this code; and any "hazardous waste" as defined in section three, article eighteen, chapter twenty-two of this code.


WVC 55-7-18 §55-7-18. Limiting liability of home care service providers, daycare centers and residential care facilities disclosing certain employment information.
When a residential care facility required to be registered, licensed or certified under the laws of the state, a licensed day care center, or an agency providing services in the home to children or incapacitated adults is asked to provide an employment reference with respect to a named individual who provided services to children or incapacitated adults for compensation, no person shall be liable for disclosing information related to the named individual's employment history, including a subjective assessment of whether the named individual is suited to provide services to children or incapacitated adults, unless it is alleged and proven that the information disclosed was false and disclosed with knowledge that the information was false.


WVC 55 - 7 - 18 A §55-7-18a. Employer immunity from liability; disclosure of information regarding former employees.
(a) Any employer or his or her designated agent who discloses job-related information that may be reasonably considered adverse about a former or current employee to a prospective employer of the former or current employee is presumed to be acting in good faith and is immune from civil liability for the disclosure or its consequences: Provided, That the disclosure of such information pursuant to this subsection shall be in writing and a copy of any such disclosure shall be provided to the former or current employee at the time of disclosure.

(b) For the purposes of this section, the presumption of good faith is rebutted upon a showing, by a preponderance of the evidence, that the information disclosed was:

(1) Knowingly false;

(2) Disclosed with reckless disregard for the truth;

(3) Deliberately misleading;

(4) Rendered with malicious purpose toward the former or current employee; or

(5) Disclosed in violation of a nondisclosure agreement or applicable law.

(c) For purposes of this section, "job-related information" means information concerning a person's education, training, experience, qualifications, conduct and job performance which is offered for the purpose of providing criteria to evaluate the person's suitability for employment.

(d) If an employer disclosed job-related information to a prospective employer of a former or current employee that was false or misleading, and if the current or former employee requests, then the employer shall give corrected information to every person or entity that is in the employer's records as having received the original information, with a copy thereof to the former or current employee.


WVC 55-7-19 §55-7-19. Liability of physicians who render services at school athletic events; limiting liability; exceptions.
(a) Any person licensed to practice medicine and surgery pursuant to the provisions of article three, chapter thirty of this code or any person licensed to practice medicine and surgery as an osteopathic physician and surgeon pursuant to the provisions of article fourteen, chapter thirty of this code: (1) Who is acting in the capacity of a volunteer team physician in attendance at an athletic event sponsored by a public or private elementary or secondary school; and (2) who gratuitously and in good faith prior to the athletic event agrees to render emergency care or treatment to any participant during such event in connection with an emergency arising during or as the result of such event, without objection of such participant, shall not be held liable for any civil damages as a result of such care or treatment, or as a result of any act or failure to act in providing or arranging further medical treatment, to an extent greater than the applicable limits of his or her professional liability insurance policy or policies when such care or treatment was rendered in accordance with the acceptable standard of care established in section three, article seven-b of this chapter.

(b) The limitation of liability established by the provisions of this section shall not apply to acts or omissions constituting gross negligence. For purposes of this section, the term "athletic event" includes scheduled practices for any athletic event.


WVC 55 - 7 - 20 §55-7-20. Limiting civil liability of nonprofits for arranging passage on excursion trains.
Any not for profit corporation for which one of its purposes is to arrange for persons or groups of persons to take excursions through, on, at or near places of scenic, historic or educational interest using trains, trackage or other related equipment and facilities of a regulated common carrier or governmental entity, shall not be liable for personal injury, wrongful death or property damage arising from the acts or omissions of the regulated common carrier or governmental entity so long as the role of the not for profit is limited to arranging for persons or groups of persons to participate in the excursion and providing tour information regarding the scenic, historic or educational qualities of the excursion area.


WVC 55 - 7 - 21 §55-7-21. Creating presumption of good faith for court-appointed licensed psychologists and psychiatrists conducting a child custody evaluation; method for assigning court and legal fees.
(a) A licensed psychologist or licensed psychiatrist who has been appointed by a court to conduct a child custody evaluation in a judicial proceeding shall be presumed to be acting in good faith if the evaluation has been conducted consistent with standards established by the American psychological association's guidelines for child custody evaluations in divorce proceedings.

(b) No complaint to a licensing or accrediting entity against a court-appointed licensed psychologist or psychiatrist relating to a child custody evaluation shall be considered if it is filed anonymously and does not include the full name, address and telephone number of the complainant.

(c) Any action filed against a licensed psychologist or licensed psychiatrist alleging tortious conduct related to evidence provided while acting as a court-appointed expert in a child custody matter shall contain a recitation of a specific allegation of breaches of American psychological association's guidelines for child custody evaluations in divorce proceedings. Failure to specifically plead such violations shall be cause for dismissal of the action.

(d) Any licensed psychologist or licensed psychiatrist who is named in a civil action as a defendant because of his or her performance of a child custody evaluation while acting as a court-appointed expert and who prevails due to a finding that he or she acted consistently with the American psychological association's guidelines shall be entitled to reimbursement of all reasonable costs and attorneys fees expended.
WVC 55 - 7 - 22 §55-7-22. Civil relief for persons resisting certain criminal activities.
(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder's or attacker's unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.

(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.

(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.

(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.

(e) The full and complete civil defense created by the provisions of this section is not available to a person who:

(1) Is attempting to commit, committing or escaping from the commission of a felony;

(2) Initially provokes the use of force against himself, herself or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or

(3) Otherwise initially provokes the use of force against himself, herself or another, unless he or she withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

(f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.

(g) Nothing in this section shall authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty.


WVC 55 - 7 - 23 §55-7-23. Prescription drugs and medical devices; limiting health care providers' liability exposure.
(a) No health care provider, as defined in section two, article seven-b of this chapter, is liable to a patient or third party for injuries sustained as a result of the ingestion of a prescription drug or use of a medical device that was prescribed or used by the health care provider in accordance with instructions approved by the U.S. Food and Drug Administration regarding the dosage and administration of the drug, the indications for which the drug should be taken or device should be used, and the contraindications against taking the drug or using the device: Provided, That the provisions of this section shall not apply if: (1) The health care provider had actual knowledge that the drug or device was inherently unsafe for the purpose for which it was prescribed or used or (2) a manufacturer of such drug or device publicly announces changes in the dosage or administration of such drug or changes in contraindications against taking the drug or using the device and the health care provider fails to follow such publicly announced changes and such failure proximately caused or contributed to the plaintiff's injuries or damages.

(b) The provisions of this section are not intended to create a new cause of action.


WVC 55 - 7 - 24 §55-7-24. Apportionment of damages.
(a) In any 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 that if any defendant is thirty percent or less at fault, then that defendant's liability shall be several and not joint and he or she shall be 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:

(1) Any party who acted with the intention of inflicting injury or damage;

(2) Any party who acted in concert with another person as part of a common plan or design resulting in harm;

(3) Any party who negligently or willfully caused the unlawful emission, disposal or spillage of a toxic or hazardous substance; or

(4) Any 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 not reallocate to any defendant an uncollectible amount greater than that defendant's percentage of fault multiplied by such uncollectible amount.

(2) If such a motion is filed, the parties may conduct discovery on the issue of collectability prior to a hearing on such motion.

(3) Any order regarding such motion shall be entered within one hundred twenty days after the date of filing such a motion.

(4) A defendant's share of the obligation to a claimant may not be increased by reason of reallocation under this subsection if:

(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 reallocation shall be 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 any right of indemnity or contribution arising out of any 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 new or different cause of action not otherwise recognized by law.

(f) Nothing in this section may be construed to affect, impair or abrogate 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 the first day of July, two thousand five.


WVC 55 - 7 - 25 §55-7-25. Personal injury and wrongful death actions; complaint; specific amount of damages not to be stated.
In any action to recover damages for personal injury or wrongful death, no specific dollar amount or figure relating to damages being sought may be included in the complaint. However, the complaint may include a statement reciting that the amount in controversy satisfies the minimum jurisdictional amount established for filing the action. Further, and pursuant to the West Virginia Rules of Civil Procedure pertaining to discovery, any party defendant may at any time request a written statement setting forth the nature and amount of damages sought. The request shall be served upon the plaintiff who shall serve a responsive statement as to the nature and amount of damages sought within thirty days thereafter. If no response is served within thirty days after receipt of service by the plaintiff, the party defendant requesting the statement may petition the court in which the action is pending to order the plaintiff to serve a responsive statement upon the requesting party defendant. This section applies only to complaints filed on or after the first day of July, two thousand eight.


WVC 55 - 7 - 26 §55-7-26. First responders who use forced entry in response to 911 call; limited immunity from civil and criminal liability.
     (a) "First responder" includes: law-enforcement officers, firefighters, emergency medical services personnel and others that respond to calls for emergency medical assistance.

     (b) Neither a first responder nor his or her supervisor, agency, employer or supervising entity is liable for any civil damages or criminal liability resulting from a forcible entry of a home, business or other structure if the first responder:

     (1) Is responding to a documented 911 call for emergency medical assistance;

     (2) Has made reasonable efforts to summon an occupant of the home, business, or structure by knocking or otherwise notifying the occupant(s) of his or her presence;

     (3) Has not received a response from an occupant within a reasonable period of time; and

     (4) Has a good faith belief that it is necessary to make a forcible entry for the purposes of rendering emergency medical assistance or preventing imminent bodily harm.

     (c) Nothing in this section shall affect the standard of care a first responder must employ when rendering aid after gaining entry.
WVC -7A- ARTICLE 7A. LIABILITY OF PARENTS.


WVC 55-7A-1 §55-7A-1. Legislative findings; declaration of legislative intent.
The Legislature hereby finds and declares that there are now and have been repeated and widespread acts of vandalism, willful and malicious destruction of property and other injury to persons and property occasioned by the willful, malicious and sometimes criminal acts of children under the age of eighteen years; that the great majority of such children are living with a parent or parents; that there arises or should arise out of such relationship, a responsibility to recompense persons injured by such acts of vandalism and willful and malicious injury to persons and property. Therefore, it is the intent of the Legislature to make parents responsible for the torts of their minor children by reason of the parent-child relationship, and to impose on said parent or parents for such acts of their children, who live with them and who commit acts of vandalism or willful and malicious injury to persons and property, liability in accordance with the provisions hereinafter set forth.


WVC 55-7A-2 §55-7A-2. Parental liability for willful, malicious or criminal acts of children.
The custodial parent or parents of any minor child shall be personally liable in an amount not to exceed five thousand dollars for damages which are the proximate result of any one or a combination of the following acts of the minor child:

(a) The malicious and willful injury to the person of another; or

(b) The malicious and willful injury or damage to the property of another, whether the property be real, personal or mixed; or

(c) The malicious and willful setting fire to a forest or wooded area belonging to another; or

(d) The willful taking, stealing and carrying away of the property of another, with the intent to permanently deprive the owner of possession.

For purposes of this section, "custodial parent or parents" shall mean the parent or parents with whom the minor child is living, or a divorced or separated parent who does not have legal custody but who is exercising supervisory control over the minor child at the time of the minor child's act.

Persons entitled to recover damages under this article shall include, but not be limited to, the state of West Virginia, any municipal corporation, county commission and board of education, or other political subdivision of this state, or any person or organization of any kind or character. The action may be brought in magistrate or another court of competent jurisdiction. Recovery hereunder shall be limited to the actual damages based upon direct out-of-pocket loss, taxable court costs, and interest from date of judgment. The right of action and remedy granted herein shall be in addition to and not exclusive of any rights of action and remedies therefor against a parent or parents for the tortious acts of his or their children heretofore existing under the provisions of any law, statutory or otherwise, or now so existing independently of the provisions of this article.

The provisions of this article shall be applicable to causes of action arising on and after the effective date of reenactment of this article. Causes of actions arising before the effective date of reenactment of this article and proceedings thereon shall be governed by the previously enacted provisions of this article in force at the time the cause arose.


WVC -7B- ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.


WVC 55 - 7 B- 1 §55-7B-1. Legislative findings and declaration of purpose.
The Legislature hereby finds and declares that the citizens of this state are entitled to the best medical care and facilities available and that health care providers offer an essential and basic service which requires that the public policy of this state encourage and facilitate the provision of such service to our citizens;

That as in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public served by health care providers be recognized as an important state interest;

That our system of litigation is an essential component of this state's interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence, and any limitation placed on this system must be balanced with and considerate of the need to fairly compensate patients who have been injured as a result of negligent and incompetent acts by health care providers;

That liability insurance is a key part of our system of litigation, affording compensation to the injured while fulfilling the need and fairness of spreading the cost of the risks of injury;

That a further important component of these protections is the capacity and willingness of health care providers to monitor and effectively control their professional competency, so as to protect the public and insure to the extent possible the highest quality of care;

That it is the duty and responsibility of the Legislature to balance the rights of our individual citizens to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers and health care facilities who can themselves obtain the protection of reasonably priced and extensive liability coverage;

That in recent years, the cost of insurance coverage has risen dramatically while the nature and extent of coverage has diminished, leaving the health care providers, the health care facilities and the injured without the full benefit of professional liability insurance coverage;

That many of the factors and reasons contributing to the increased cost and diminished availability of professional liability insurance arise from the historic inability of this state to effectively and fairly regulate the insurance industry so as to guarantee our citizens that rates are appropriate, that purchasers of insurance coverage are not treated arbitrarily and that rates reflect the competency and experience of the insured health care providers and health care facilities;

That the unpredictable nature of traumatic injury health care services often result in a greater likelihood of unsatisfactory patient outcomes, a higher degree of patient and patient family dissatisfaction and frequent malpractice claims, creating a financial strain on the trauma care system of our state, increasing costs for all users of the trauma care system and impacting the availability of these services, requires appropriate and balanced limitations on the rights of persons asserting claims against trauma care health care providers, this balance must guarantee availability of trauma care services while mandating that these services meet all national standards of care, to assure that our health care resources are being directed towards providing the best trauma care available; and

That the cost of liability insurance coverage has continued to rise dramatically, resulting in the state's loss and threatened loss of physicians, which, together with other costs and taxation incurred by health care providers in this state, have created a competitive disadvantage in attracting and retaining qualified physicians and other health care providers.

The Legislature further finds that medical liability issues have reached critical proportions for the state's long-term health care facilities, as: (1) Medical liability insurance premiums for nursing homes in West Virginia continue to increase and the number of claims per bed has increased significantly; (2) the cost to the state medicaid program as a result of such higher premiums has grown considerably in this period; (3) current medical liability premium costs for some nursing homes constitute a significant percentage of the amount of coverage; (4) these high costs are leading some facilities to consider dropping medical liability insurance coverage altogether; and (5) the medical liability insurance crisis for nursing homes may soon result in a reduction of the number of beds available to citizens in need of long-term care.

Therefore, the purpose of this article is to provide for a comprehensive resolution of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth in this section. In so doing, the Legislature has determined that reforms in the common law and statutory rights of our citizens must be enacted together as necessary and mutual ingredients of the appropriate legislative response relating to:

(1) Compensation for injury and death;

(2) The regulation of rate making and other practices by the liability insurance industry, including the formation of a physicians' mutual insurance company and establishment of a fund to assure adequate compensation to victims of malpractice; and

(3) The authority of medical licensing boards to effectively regulate and discipline the health care providers under such board.


WVC 55 - 7 B- 2 §55-7B-2. Definitions.
(a) "Board" means the state Board of Risk and Insurance Management.

(b) "Collateral source" means a source of benefits or advantages for economic loss that the claimant has received from:

(1) Any federal or state act, public program or insurance which provides payments for medical expenses, disability benefits, including workers' compensation benefits, or other similar benefits. Benefits payable under the Social Security Act are not considered payments from collateral sources except for Social Security disability benefits directly attributable to the medical injury in question;

(2) Any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy or other health care services or provide similar benefits;

(3) Any group accident, sickness or income disability insurance, any casualty or property insurance (including automobile and homeowners' insurance) which provides medical benefits, income replacement or disability coverage, or any other similar insurance benefits, except life insurance, to the extent that someone other than the insured, including the insured's employer, has paid all or part of the premium or made an economic contribution on behalf of the plaintiff; or

(4) 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.

(c) "Consumer price index" means the most recent consumer price index for all consumers published by the United States Department of Labor.

(d) "Emergency condition" means any acute traumatic injury or acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the precipitation of significant complications or disabilities, impairment of bodily functions, or, with respect to a pregnant woman, a significant risk to the health of the unborn child.

(e) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement.

(f) "Health care facility" means any clinic, hospital, nursing home or assisted living facility, including personal care home, residential care community and residential board and care home, or behavioral health care facility or comprehensive community mental health/mental retardation center, in and licensed by the State of West Virginia and any state-operated institution or clinic providing health care.

(g) "Health care provider" means a person, partnership, corporation, professional limited liability company, health care facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, emergency medical services authority or agency, or an officer, employee or agent thereof acting in the course and scope of such officer's, employee's or agent's employment.

(h) "Medical injury" means injury or death to a patient arising or resulting from the rendering of or failure to render health care.

(i) "Medical professional liability" means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.

(j) "Medical professional liability insurance" means a contract of insurance or any actuarially sound self-funding program that pays for the legal liability of a health care facility or health care provider arising from a claim of medical professional liability. In order to qualify as medical professional liability insurance for purposes of this article, a self-funding program for an individual physician must meet the requirements and minimum standards set forth in section twelve of this article.

(k) "Noneconomic loss" means losses, including, but not limited to, pain, suffering, mental anguish and grief.

(l) "Patient" means a natural person who receives or should have received health care from a licensed health care provider under a contract, expressed or implied.

(m) "Plaintiff" means a patient or representative of a patient who brings an action for medical professional liability under this article.

(n) "Representative" means the spouse, parent, guardian, trustee, attorney or other legal agent of another.


WVC 55 - 7 B- 3 §55-7B-3. Elements of proof.
(a) The following are necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care:

(1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and

(2) Such failure was a proximate cause of the injury or death.

(b) If the plaintiff proceeds on the "loss of chance" theory, i.e., that the health care provider's failure to follow the accepted standard of care deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient, the plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.


WVC 55-7B-4 §55-7B-4. Health care injuries; limitations of actions; exceptions.
(a) A cause of action for injury to a person alleging medical professional liability against a health care provider arises as of the date of injury, except as provided in subsection (b) of this section, and must be commenced within two years of the date of such injury, or within two year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs: Provided, That in no event shall any such action be commenced more than ten years after the date of injury.

(b) A cause of action for injury to a minor, brought by or on behalf of a minor who was under the age of ten years at the time of such injury, shall be commenced within two years of the date of such injury, or prior to the minor's twelfth birthday, whichever provides the longer period.

(c) The periods of limitation set forth in this section shall be tolled for any period during which the health care provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.


WVC 55 - 7 B- 5 §55-7B-5. Health care actions; complaint; specific amount of damages not to be stated; limitation on bad faith claims; filing of first party bad faith claims.
(a) In any medical professional liability action against a health care provider, no specific dollar amount or figure may be included in the complaint, but the complaint may include a statement reciting that the minimum jurisdictional amount established for filing the action is satisfied. However, any party defendant may at any time request a written statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff who shall serve a responsive statement as to the damages sought within thirty days thereafter. If no response is served within the thirty days, the party defendant requesting the statement may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.

(b) Notwithstanding any other provision of law, absent privity of contract, no plaintiff who files a medical professional liability action against a health care provider may file an independent cause of action against any insurer of the health care provider alleging the insurer has violated the provisions of subdivision (9), section four, article eleven, chapter thirty-three of this code. Insofar as the provisions of section three, article eleven, chapter thirty-three of this code prohibit the conduct defined in subdivision (9), section four, article eleven, chapter thirty-three of this code, no plaintiff who files a medical professional liability action against a health care provider may file an independent cause of action against any insurer of the health care provider alleging the insurer has violated the provisions of said section three.

(c) No health care provider may file a cause of action against his or her insurer alleging the insurer has violated the provisions of subdivision (9), section four, article eleven, chapter thirty-three of this code until the jury has rendered a verdict in the underlying medical professional liability action or the case has otherwise been dismissed, resolved or disposed of.


WVC 55 - 7 B- 6 §55-7B-6. Prerequisites for filing an action against a health care provider; procedures; sanctions.
(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.

(b) At least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) The expert's familiarity with the applicable standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of rule 15 of the rules of civil procedure.

(c) Notwithstanding any provision of this code, if a claimant or his or her counsel, believes that no screening certificate of merit is necessary because the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care, the claimant or his or her counsel, shall file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of merit.

(d) If a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.

(e) Any health care provider who receives a notice of claim pursuant to the provisions of this section may respond, in writing, to the claimant or his or her counsel within thirty days of receipt of the claim or within thirty days of receipt of the screening certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) of this section. The response may state that the health care provider has a bona fide defense and the name of the health care provider's counsel, if any.

(f) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) of this section, the health care provider is entitled to pre-litigation mediation before a qualified mediator upon written demand to the claimant.

(g) If the health care provider demands mediation pursuant to the provisions of subsection (f) of this section, the mediation shall be concluded within forty-five days of the date of the written demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the supreme court of appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.

(h) Except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of mail of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs. If a claimant has sent a notice of claim relating to any injury or death to more than one health care provider, any one of whom has demanded mediation, then the statute of limitations shall be tolled with respect to, and only with respect to, those health care providers to whom the claimant sent a notice of claim to thirty days from the receipt of the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded.

(i) Notwithstanding any other provision of this code, a notice of claim, a health care provider's response to any notice claim, a screening certificate of merit and the results of any mediation conducted pursuant to the provisions of this section are confidential and are not admissible as evidence in any court proceeding unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.


WVC 55 - 7 B- 6A §55-7B-6a. Access to medical records.
(a) Within thirty days of the filing of an answer by a defendant in a medical professional liability action or, if there are multiple defendants, within thirty days following the filing of the last answer, the plaintiff shall provide each defendant and each defendant shall provide the plaintiff with access, as if a request had been made for production of documents pursuant to rule 34 of the rules of civil procedure, to all medical records pertaining to the alleged act or acts of medical professional liability which: (1) Are reasonably related to the plaintiff's claim; and (2) are in the party's control. The plaintiff shall also provide releases for such other medical records known to the plaintiff but not under his or her control but which relate to the plaintiff's claim. If the action is one alleging wrongful death, the records shall be for the deceased except inasmuch as the plaintiff alleges injury to himself or herself.

(b) Upon receipt and review of the records referred to in subsection (a) of this section, any party may make a written request to any other party for medical records of the plaintiff or the deceased related to his or her medical care and which are reasonably related to the plaintiff's claim. Such request shall be specific as to the type of record requested and shall be accompanied by a brief statement as to why its disclosure would be relevant to preparation of a claim or of a defense. The party receiving the request shall provide access to any such records under his or her control or a release for medical records for such records not under his or her control unless the party receiving the request believes that the records requested are not reasonably related to the claim.

(c) If a party receives a request for existing records he or she believes are not reasonably related to the claim, he or she shall provide written notice to the requesting party of the existence of such records and schedule a hearing before the court to determine whether access should be provided.

(d) If a party has reasonable cause to believe that medical records reasonably related to the claim of medical negligence exist and access have not been provided or a release has not been provided therefor, he or she shall give written notice thereof to the party upon whom the request is made, and if said records are not received within fourteen days of the written notice, obtain a hearing on the matter before the court.

(e) In the event a hearing is required pursuant to the provisions of subsection (c) or (d) of this section, the court at the conclusion thereof shall make a finding as to the reasonableness of the parties' request for or refusal to provide records and may assess costs pursuant to the rules of civil procedure.


WVC 55 - 7 B- 6B §55-7B-6b. Expedited resolution of cases against health care providers; time frames.
(a) In each professional liability action filed against a health care provider, the court shall convene a mandatory status conference within sixty days after the appearance of the defendant. It shall be the duty of the defendant to schedule the conference with the court upon proper notice to the plaintiff.

(b) During the status conference the parties shall inform the court as to the status of the action, the identification of contested facts and issues, the progress of discovery and the time necessary to complete discovery. The plaintiff shall advise the court whether the plaintiff intends to proceed without an expert, whether the expert who signed the screening certificate of merit will testify upon trial or whether additional experts will be offered by plaintiff. The court shall determine whether the plaintiff may proceed without an expert or otherwise establish dates for the disclosure of expert witnesses by both the plaintiff and all defendants. The court shall also order the parties to participate in mandatory mediation. The mediation shall be conducted pursuant to the provisions of trial court rule 25.

(c) Absent an order expressly setting forth reasons why the interests of justice would otherwise be served, the court shall enter a scheduling order which sets a trial date within twenty-four months from the date the defendant made an appearance, or if there is more than one defendant, twenty-four months from the date the last defendant makes an appearance in the proceeding. The trial date shall be adhered to unless, for good cause shown, the court enters an order continuing the trial date.

(d) The court may order a summary jury trial of the case if all parties represent a case is ready for trial and jointly move the court for a summary jury trial, as provided in section six-c of this article.

(e) Counsel and parties are subject to sanctions for failures and lack of preparation specified in rule 16(f) of the rules of civil procedure respecting pretrial conferences or orders and are subject to the payment of reasonable expenses, including attorneys fees, for failure to participate in good faith in the development and submission of a proposed discovery plan as required by the rules of civil procedure.

(f) In the event that the court determines prior to trial that either party is presenting or relying upon a frivolous or dilatory claim or defense, for which there is no reasonable basis in fact or at law, the court may direct in any final judgment the payment to the prevailing party of reasonable litigation expenses, including deposition and subpoena expenses, travel expenses incurred by the party, and such other expenses necessary to the maintenance of the action, excluding attorney's fees and expenses.


WVC 55 - 7 B- 6C §55-7B-6c. Summary jury trial.
(a) The court must determine the date of the summary jury trial, the length of presentations by counsel, and the length of deliberations by the jury, so that the proceeding can be completed in no more than one day.

(b) Unless the court orders otherwise, the parties or representatives of the parties must be present at the summary jury trial.

(c) The trial shall be conducted before a six-member jury selected from the regular jury panel. The court shall conduct a brief voir dire of the panel, and each party may exercise two challenges. No alternate jurors will be impaneled.

(d) All evidence shall be presented by the attorneys for the parties. The attorneys may summarize, quote from, and comment on pleadings, depositions, or other discovery requests and responses, exhibits and statements of potential witnesses. No potential testimony of a witness may be referred to unless the reference is based on: (i) The product of discovery procedures; (ii) a written sworn statement of the witness; or (iii) an affidavit of counsel stating that although an affidavit of the witness is not available and cannot be obtained by the exercise of reasonable diligence, the witness would be called at trial and counsel has been told the substance of the testimony of the witness. The substance of the witness' testimony must also be included in the affidavit of counsel.

(e) Unless the court orders otherwise, presentations shall be limited to one hour for each party. In the case of multiple parties represented by separate counsel, the court shall make a reasonable adjustment of the time allowed.

(f) Opposing counsel may object during the course of a presentation if the presentation violates the provisions of subsection (d) of this section or goes beyond the limits of propriety in statements as to evidence or other comments.

(g) Following the presentations by counsel, the court shall give an abbreviated set of instructions to the jury on the applicable law. The jury will be encouraged to return a verdict that represents a unanimous verdict of the jurors. If after a reasonable time a unanimous verdict is not possible, the jury shall be directed to return a special verdict consisting of an anonymous statement of each juror's finding on liability and damages. Following the verdict, the court may invite, but may not require, the jurors to informally discuss the case with the attorneys and the parties.

(h) Unless the court orders otherwise, the proceedings will not be recorded. However, a party may arrange for recording at its own expense. Statements in briefs or summaries submitted in connection with the summary jury trial and statements by counsel at trial are not admissible in any evidentiary proceeding. The summary jury trial verdict is not admissible in any evidentiary proceeding.

(i) Within thirty days following the jury verdict, each party must file a notice setting forth whether the party intends to accept the summary jury trial verdict or whether the party rejects the summary jury trial verdict and desires to proceed to trial. If all parties accept the summary jury trial verdict, the verdict will be deemed a final determination on the merits and judgment may be entered on the verdict by the court. If a verdict is rendered upon the subsequent trial of the case which is not more than twenty percent more favorable to a party who rejected the summary jury trial verdict and indicated a desire to proceed to trial, the rejecting party is liable for the costs incurred by the other party or parties subsequent to the summary jury trial, in a similar manner as is provided in rule 68(c) of the rules of civil procedure when a claimant rejects an offer of judgment, and is liable for attorneys' fees incurred after the summary jury trial.


WVC 55 - 7 B- 6D §55-7B-6d. Twelve-member jury trial.
Notwithstanding any other provision of this code, the jury in any trial of an action for medical professional liability shall consist of twelve members. The judge shall instruct the jury that they should endeavor to reach a unanimous verdict but, if they cannot reach a unanimous verdict, they may return a majority verdict of nine of the twelve members of the jury. The judge shall accept and record any verdict reached by nine members of the jury. The verdict shall bear the signatures of all jurors who have concurred in the verdict. The verdict shall be announced in open court, either by the jury foreperson or by any of the jurors concurring in the verdict. After a verdict has been returned and before the jury has been discharged, the jury shall be polled at the request of any party or upon the court's own motion. The poll shall be conducted by the clerk of the court asking each juror individually whether the verdict announced is such juror's verdict. If, upon the poll, a majority of nine members of the jury has not concurred in the verdict, the jury may be directed to retire for further deliberations or the jury may be discharged.


WVC 55 - 7 B- 7 §55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. Expert testimony may only be admitted in evidence if the foundation therefor is first laid establishing that: (1) The opinion is actually held by the expert witness; (2) the opinion can be testified to with reasonable medical probability; (3) the expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (4) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided, That the expert witness' license has not been revoked or suspended in the past year in any state; and (5) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the medical injury, sixty percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or speciality in an accredited university, there shall be a rebuttable presumption that the witness is qualified as an expert. The parties shall have the opportunity to impeach any witness' qualifications as an expert. Financial records of an expert witness are not discoverable or relevant to prove the amount of time the expert witness spends in active practice or teaching in his or her medical field unless good cause can be shown to the court.

(b) Nothing contained in this section may be construed to limit a trial court's discretion to determine the competency or lack of competency of a witness on a ground not specifically enumerated in this section.


WVC 55 - 7 B- 8 §55-7B-8. Limit on liability for noneconomic loss.
(a) In any professional liability action brought against a health care provider pursuant to this article, the maximum amount recoverable as compensatory damages for noneconomic loss shall not exceed two hundred fifty thousand dollars per occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, except as provided in subsection (b) of this section.

(b) The plaintiff may recover compensatory damages for noneconomic loss in excess of the limitation described in subsection (a) of this section, but not in excess of five hundred thousand dollars for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, where the damages for noneconomic losses suffered by the plaintiff were for: (1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life sustaining activities.

(c) On the first of January, two thousand four, and in each year thereafter, the limitation for compensatory damages contained in subsections (a) and (b) of this section shall increase to account for inflation by an amount equal to the consumer price index published by the United States department of labor, up to fifty percent of the amounts specified in subsections (b) and (c) as a limitation of compensatory noneconomic damages.

(d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does not have medical professional liability insurance in the amount of at least one million dollars per occurrence covering the medical injury which is the subject of the action.

(e) If subsection (a) or (b) of this section, as enacted during the regular session of the Legislature, two thousand three, or the application thereof to any person or circumstance, is found by a court of law to be unconstitutional or otherwise invalid, the maximum amount recoverable as damages for noneconomic loss in a professional liability action brought against a health care provider under this article shall thereafter not exceed one million dollars.


WVC 55 - 7 B- 9 §55-7B-9. Several liability.
(a) In the trial of a medical professional liability action under this article involving multiple defendants, the trier of fact shall report its findings on a form provided by the court which contains each of the possible verdicts as determined by the court. Unless otherwise agreed by all the parties to the action, the jury shall be instructed to answer special interrogatories, or the court, acting without a jury, shall make findings as to:

(1) The total amount of compensatory damages recoverable by the plaintiff;

(2) The portion of the damages that represents damages for noneconomic loss;

(3) The portion of the damages that represents damages for each category of economic loss;

(4) The percentage of fault, if any, attributable to each plaintiff; and

(5) The percentage of fault, if any, attributable to each of the defendants.

(b) In assessing percentages of fault, the trier of fact shall consider only the fault of the parties in the litigation at the time the verdict is rendered and shall not consider the fault of any other person who has settled a claim with the plaintiff arising out of the same medical injury. Provided, That, upon the creation of the patient injury compensation fund provided for in article twelve-c, chapter twenty-nine of this code, or of some other mechanism for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which the plaintiff has been unable to collect, the trier of fact shall, in assessing percentages of fault, consider the fault of all alleged parties, including the fault of any person who has settled a claim with the plaintiff arising out of the same medical injury.

(c) If the trier of fact renders a verdict for the plaintiff, the court shall enter judgment of several, but not joint, liability against each defendant in accordance with the percentage of fault attributed to the defendant by the trier of fact.

(d) To determine the amount of judgment to be entered against each defendant, the court shall first, after adjusting the verdict as provided in section nine-a of this article, reduce the adjusted verdict by the amount of any pre-verdict settlement arising out of the same medical injury. The court shall then, with regard to each defendant, multiply the total amount of damages remaining, with interest, by the percentage of fault attributed to each defendant by the trier of fact. The resulting amount of damages, together with any post-judgment interest accrued, shall be the maximum recoverable against the defendant.

(e) Upon the creation of the patient injury compensation fund provided for in article twelve-c, chapter twenty-nine of this code, or of some other mechanism for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which the plaintiff has been unable to collect, the court shall, in determining the amount of judgment to be entered against each defendant, first multiply the total amount of damages, with interest, recoverable by the plaintiff by the percentage of each defendant's fault and that amount, together with any post-judgment interest accrued, is the maximum recoverable against said defendant. Prior to the court's entry of the final judgment order as to each defendant against whom a verdict was rendered, the court shall reduce the total jury verdict by any amounts received by a plaintiff in settlement of the action. When any defendant's percentage of the verdict exceeds the remaining amounts due plaintiff after the mandatory reductions, each defendant shall be liable only for the defendant's pro rata share of the remainder of the verdict as calculated by the court from the remaining defendants to the action. The plaintiff's total award may never exceed the jury's verdict less any statutory or court-ordered reductions.

(f) Nothing in this section is meant to eliminate or diminish any defenses or immunities which exist as of the effective date of this section, except as expressly noted in this section.

(g) Nothing in this article is meant to preclude a health care provider from being held responsible for the portion of fault attributed by the trier of fact to any person acting as the health care provider's agent or servant or to preclude imposition of fault otherwise imputable or attributable to the health care provider under claims of vicarious liability. A health care provider may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency unless the alleged agent does not maintain professional liability insurance covering the medical injury which is the subject of the action in the aggregate amount of at least one million dollars.


WVC 55 - 7 B- 9 A §55-7B-9a. Reduction in compensatory damages for economic losses for payments from collateral sources the same injury.
(a) In any action arising after the effective date of this section, a defendant who has been found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economic losses may present to the court, after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received for the same injury from collateral sources.

(b) In any hearing pursuant to subsection (a) of this section, the defendant may present evidence of future payments from collateral sources if the court determines that: (1) There is a preexisting contractual or statutory obligation on the collateral source to pay the benefits; (2) the benefits, to a reasonable degree of certainty, will be paid to the plaintiff for expenses the trier of fact has determined the plaintiff will incur in the future; and (3) the amount of the future expenses is readily reducible to a sum certain.

(c) In the hearing pursuant to subsection (a) of this section, the plaintiff may present evidence of the value of payments or contributions he or she has made to secure the right to the benefits paid by the collateral source.

(d) After hearing the evidence presented by the parties, the court shall make the following findings of fact:

(1) The total amount of damages for economic loss found by the trier of fact;

(2) The total amount of damages for each category of economic loss found by the trier of fact;

(3) The total amount of allowable collateral source payments received or to be received by the plaintiff for the medical injury which was the subject of the verdict in each category of economic loss; and

(4) The total amount of any premiums or contributions paid by the plaintiff in exchange for the collateral source payments in each category of economic loss found by the trier of fact.

(e) The court shall subtract the total premiums the plaintiff was found to have paid in each category of economic loss from the total collateral source benefits the plaintiff received with regard to that category of economic loss to arrive at the net amount of collateral source payments.

(f) The court shall then subtract the net amount of collateral source payments received or to be received by the plaintiff in each category of economic loss from the total amount of damages awarded the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted verdict.

(g) The court shall not reduce the verdict rendered by the trier of fact in any category of economic loss to reflect:

(1) Amounts paid to or on behalf of the plaintiff which the collateral source has a right to recover from the plaintiff through subrogation, lien or reimbursement;

(2) Amounts in excess of benefits actually paid or to be paid on behalf of the plaintiff by a collateral source in a category of economic loss;

(3) The proceeds of any individual disability or income replacement insurance paid for entirely by the plaintiff;

(4) The assets of the plaintiff or the members of the plaintiff's immediate family; or

(5) A settlement between the plaintiff and another tortfeasor.

(h) After determining the amount of the adjusted verdict, the court shall enter judgment in accordance with the provisions of section nine.


WVC 55 - 7 B- 9 B §55-7B-9b. Limitations on third-party claims.
An action may not be maintained against a health care provider pursuant to this article by or on behalf of a third-party nonpatient for rendering or failing to render health care services to a patient whose subsequent act is a proximate cause of injury or death to the third party unless the health care provider rendered or failed to render health care services in willful and wanton or reckless disregard of a foreseeable risk of harm to third persons. Nothing in this section shall be construed to prevent the personal representative of a deceased patient from maintaining a wrongful death action on behalf of such patient pursuant to article seven of this chapter or to prevent a derivative claim for loss of consortium arising from injury or death to the patient arising from the negligence of a health care provider within the meaning of this article.


WVC 55 - 7 B- 9 C §55-7B-9c. Limit on liability for treatment of emergency conditions for which patient is admitted to a designated trauma center; exceptions; emergency rules.
(a) In any action brought under this article for injury to or death of a patient as a result of health care services or assistance rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated by the office of emergency medical services as a trauma center, including health care services or assistance rendered in good faith by a licensed EMS agency or an employee of an licensed EMS agency, the total amount of civil damages recoverable shall not exceed five hundred thousand dollars, exclusive of interest computed from the date of judgment.

(b) The limitation of liability in subsection (a) of this section also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable time after the patient's condition is stabilized.

(c) The limitation on liability provided under subsection (a) of this section does not apply to any act or omission in rendering care or assistance which: (1) Occurs after the patient's condition is stabilized and the patient is capable of receiving medical treatment as a nonemergency patient; or (2) is unrelated to the original emergency condition.

(d) In the event that: (1) A physician provides follow-up care to a patient to whom the physician rendered care or assistance pursuant to subsection (a) of this section; and (2) a medical condition arises during the course of the follow-up care that is directly related to the original emergency condition for which care or assistance was rendered pursuant to said subsection, there is rebuttable presumption that the medical condition was the result of the original emergency condition and that the limitation on liability provided by said subsection applies with respect to that medical condition.

(e) There is a rebuttable presumption that a medical condition which arises in the course of follow-up care provided by the designated trauma center health care provider who rendered good faith care or assistance for the original emergency condition is directly related to the original emergency condition where the follow-up care is provided within a reasonable time after the patient's admission to the designated trauma center.

(f) The limitation on liability provided under subsection (a) of this section does not apply where health care or assistance for the emergency condition is rendered:

(1) In willful and wanton or reckless disregard of a risk of harm to the patient; or

(2) In clear violation of established written protocols for triage and emergency health care procedures developed by the office of emergency medical services in accordance with subsection (e) of this section. In the event that the office of emergency medical services has not developed a written triage or emergency medical protocol by the effective date of this section, the limitation on liability provided under subsection (a) of this section does not apply where health care or assistance is rendered under this section in violation of nationally recognized standards for triage and emergency health care procedures.

(g) The office of emergency medical services shall, prior to the effective date of this section, develop a written protocol specifying recognized and accepted standards for triage and emergency health care procedures for treatment of emergency conditions necessitating admission of the patient to a designated trauma center.

(h) In its discretion, the office of emergency medical services may grant provisional trauma center status for a period of up to one year to a health care facility applying for designated trauma center status. A facility given provisional trauma center status is eligible for the limitation on liability provided in subsection (a) of this section. If, at the end of the provisional period, the facility has not been approved by the office of emergency medical services as a designated trauma center, the facility will no longer be eligible for the limitation on liability provided in subsection (a) of this section.

(i) The commissioner of the bureau for public health may grant an applicant for designated trauma center status a one-time only extension of provisional trauma center status, upon submission by the facility of a written request for extension, accompanied by a detailed explanation and plan of action to fulfill the requirements for a designated trauma center. If, at the end of the six-month period, the facility has not been approved by the office of emergency medical services as a designated trauma center, the facility will no longer have the protection of the limitation on liability provided in subsection (a) of this section.

(j) If the office of emergency medical services determines that a health care facility no longer meets the requirements for a designated trauma center, it shall revoke the designation, at which time the limitation on liability established by subsection (a) of this section shall cease to apply to that health care facility for services or treatment rendered thereafter.

(k) The Legislature hereby finds that an emergency exists compelling promulgation of an emergency rule, consistent with the provisions of this section, governing the criteria for designation of a facility as a trauma center or provisional trauma center and implementation of a statewide trauma/emergency care system. The Legislature therefore directs the secretary of the department of health and human resources to file, on or before the first day of July, two thousand three, emergency rules specifying the criteria for designation of a facility as a trauma center or provisional trauma center in accordance with nationally accepted and recognized standards and governing the implementation of a statewide trauma/emergency care system. The rules governing the statewide trauma/emergency care system shall include, but not be limited to:

(1) System design, organizational structure and operation, including integration with the existing emergency medical services system;

(2) Regulation of facility designation, categorization and credentialing, including the establishment and collection of reasonable fees for designation; and

(3) System accountability, including medical review and audit to assure system quality. Any medical review committees established to assure system quality shall include all levels of care, including emergency medical service providers, and both the review committees and the providers shall qualify for all the rights and protections established in article three-c, chapter thirty of this code.


WVC 55 - 7 B- 10 §55-7B-10. Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first extraordinary session of the Legislature, 1986, shall be effective at the same time that the provisions of Enrolled Senate Bill 714, enacted during the Regular session, 1986, become effective, and the provisions of said House Bill 149 shall be deemed to amend the provisions of Enrolled Senate Bill 714. The provisions of this article shall not apply to injuries which occur before the effective date of this said Enrolled Senate Bill 714.

The amendments to this article as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, two thousand one, apply to all causes of action alleging medical professional liability which are filed on or after the first day of March, two thousand two.

(b) The amendments to this article provided in Enrolled Committee Substitute for House Bill No. 2122 during the regular session of the Legislature, two thousand three, apply to all causes of action alleging medical professional liability which are filed on or after the first day of July, two thousand three.


WVC 55 - 7 B- 11 §55-7B-11. Severability.
(a) If any provision of this article as enacted during the first extraordinary session of the Legislature, 1986, in House Bill 149, or as enacted during the regular session of the Legislature, 1986, in Senate Bill 714, or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end, the provisions of this article are declared to be severable.

(b) If any provision of the amendments to section five of this article, any provision of new section six-d of this article or any provision of the amendments to section eleven, article six, chapter fifty-six of this code as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, two thousand one, is held invalid, or the application thereof to any person is held invalid, then, notwithstanding any other provision of law, every other provision of said House Bill 601 shall be deemed invalid and of no further force and effect.

(c) If any provision of the amendments to sections six or ten of this article or any provision of new sections six-a, six-b or six-c of this article as provided in House Bill 60l, enacted during the sixth extraordinary session of the Legislature, two thousand one, is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end, such provisions are deemed severable.


WVC 55 - 7 B- 12 §55-7B-12. Self-funding program; requirements; minimum standards.
(a) An irrevocable trust may be established by or for the benefit of the physician and funded by conveyance to the trustee of the sum of not less than one million dollars, in cash or cash equivalents, subject to disbursement and replenishment from time to time, as described in this section, and exclusive of funds needed for maintenance, administration, legal defense and all other costs.

(b) A physician who has established a trust pursuant to this section may subsequently terminate the trust and elect to acquire coverage from a commercial medical professional liability insurance carrier. The assets of the trust may not be distributed to the physician settlor until the costs associated with the administration of the trust have been satisfied and the trustee receives certification that the physician has acquired medical professional liability insurance tail coverage or prior acts coverage, whichever is applicable. The tail coverage or prior acts coverage must cover the time period from the establishment of the trust to the effective date of the newly acquired medical professional liability insurance coverage or twelve years, whichever is shorter.

(c) For a period of not less than the applicable statute of limitations for medical professional liability, a physician who has established an actuarially sound physician self-funding insurance program under this section and has such a program in effect at the time of retirement shall, following his or her retirement, either maintain the trust in effect at funding levels required by this section, or purchase and maintain in force and effect tail insurance as required by article twenty-d, chapter thirty-three of this code.

(d) The trustee for the trust must be an independent professional, bank or other qualified institutional fiduciary. The trustee has all necessary and appropriate powers to fulfill the purposes of the trust, including, but not limited to, the powers to:

(1) Disburse funds for the maintenance and administration of the trust, and for defense costs, judgments, arbitration indemnity awards and settlements;

(2) Hire an actuary who is a member of the Casualty Actuarial Society and experienced in medical professional liability protection programs to provide a periodic opinion, but not less frequently than annually, as to the actuarial soundness of the fund, a copy of which opinion shall be provided upon request to any facility where the physician maintains clinical privileges;

(3) Hire a qualified, third-party claims manager experienced in handling medical professional liability claims, with the power and authority to set reserves and administer and oversee the defense of all claims; and

(4) Require that the physician replenish the trust so as to maintain at all times a funding level of no less than one million dollars or such greater amount as set forth in the most current actuarial opinion as described in subdivision (2) of this subsection, exclusive of funds needed for maintenance, administration, defense or other costs.

(e) The trustee, acting directly or through its hired professionals, as appropriate, shall periodically, but not less frequently than annually, evaluate and set required trust funding levels for the trust; make assessments against the physician for payments into the trust in order to replenish and maintain the trust at levels required by this subsection and required to render the trust actuarially sound from time to time; and otherwise take such actions as may appear necessary, desirable or appropriate to fulfill the purposes and integrity of the trust. Should the physician fail to timely meet any of the requests or requirements of the trustee with regard to funding of the trust or otherwise, or should the trust at any time fail to meet all the requirements of this subsection, thereupon the trust arrangement will conclusively no longer qualify under this article as an actuarially sound self-funding program: Provided, That all assets of the trust at the time of any such disqualifying event or circumstance will remain trust assets and may not be distributed to the physician settlor of the trust until the latter of the date on which any and all medical professional liability claims asserted or pending against the physician at the time of such disqualifying event or circumstance or within the applicable statute of limitations for medical malpractice liability thereafter have been finally adjudicated or otherwise resolved and fully satisfied to the extent of trust assets available for such purpose.

(f) In the event that more than one claim arises within the period since the last annual evaluation, a new evaluation will be performed within sixty days or at the time of the next annual audit, whichever is shorter, in order to evaluate the trust and replenish funds to ensure that its assets total not less than one million dollars, or such other amount that is actuarially determined necessary to satisfy the aggregate outstanding claims, whichever is greater, exclusive of funds needed for maintenance, administration, legal defense or other costs.


WVC -7C- ARTICLE 7C. IMMUNITY FROM CIVIL LIABILITY FOR QUALIFIED DIRECTORS OF CERTAIN GOVERNMENTAL AND NONPROFIT ENTITIES.


WVC 55-7C-1 §55-7C-1. Findings and declaration of public purpose.
The Legislature hereby finds and declares that the citizens of this state have been and should continue to be well served by those serving without compensation on various boards, commissions, committees, agencies and other organizations of the state, and its political subdivisions, of nonprofit corporations and other organizations engaged in religious, charitable, cultural, benevolent, educational and scientific endeavors, child placement or child care, or indigent or elderly care, and of organizations that advocate the interests of their members with respect to the trades, industries and businesses of the state; that in recent years, the cost of insurance coverage for such persons has risen dramatically while the nature and extent of coverage has diminished; that in order to enable persons to willingly serve as qualified directors, as hereinafter defined, the Legislature must provide those qualified directors with limited immunity from civil liability; and that the enactment of this article serves a necessary public purpose. This article is enacted in view of these findings and shall be liberally construed in the light thereof.


WVC 55-7C-2 §55-7C-2. Definitions.
For purposes of this article, unless a different meaning plainly is required:

(1) "Managerial function" means the act or acts of a qualified director, whereby such qualified director, through direction, regulation or administration, exercises government, control, or superintendence of the affairs of a volunteer organization or entity. Managerial functions shall include ministerial acts and acts involving the exercise of discretion and judgment, but shall not include the physical or manual handling or use of tangible property, including, but not limited to, motor vehicles, or the direct guidance or supervision of persons.

(2) "Nonprofit hospital" means a nonprofit organization, the principal purpose or function of which is the providing of medical or hospital care, and includes general, tuberculosis, and other types of hospitals, and related facilities, such as laboratories, outpatient departments, nurses' home facilities, extended care facilities, facilities related to programs for home health services, self-care units, and central service facilities, operated in connection with hospitals, and also includes education or training facilities for health professional personnel operated as an integral part of a hospital and medical research organizations directly engaged in the continuous active conduct of medical research in conjunction with a hospital, but does not include any hospital furnishing primarily domiciliary care.

(3) "Qualified director" means an individual who serves without compensation for personal services as an officer, member or director of a board, commission, committee, agency or other nonprofit organization which is a volunteer organization or entity. For purposes of this article, "compensation" does not include reimbursement for expenses, incidental meals, lodging or other accommodations, and does not include per diem compensation fixed by statute.

(4) "Volunteer organization or entity" means:

(A) The state or any political subdivision or subdivisions thereof;

(B) Nonprofit corporations as defined in section six, article one, chapter thirty-one of this code, and other nonprofit organizations, which such corporations or organizations provide or promote:

(i) Religion;

(ii) Charity;

(iii) Music, art or other literary or cultural activities;

(iv) Benevolence;

(v) Child placement or child care;

(vi) Indigent or elderly care;

(vii) Education;

(viii) Scientific activity;

(ix) Community or economic development;

(x) Recreation;

(xi) Maintenance and repair of community owned real property or of real property maintained by a homeowners' association;

(xii) Legal services for the indigent;

(xiii) Conservation of natural resources or animal habitat; or

(xiv) Fire-fighting services and other public safety services.

(C) Any organization that acts as an advocate for its members and that has as its members individuals or organizations that are:

(i) Members of a particular trade or industry; or

(ii) Members of the business community; or

(iii) Members of armed services veteran associations.

"Volunteer organization or entity" shall not include a nonprofit hospital which maintains one hundred fifty or more beds for hospitalization of the sick or injured.


WVC 55-7C-3 §55-7C-3. Limited civil liability of qualified directors.
Notwithstanding any other provision of this code, a qualified director shall not be held personally liable for negligence, either through act or omission, or whether actual or imputed, in the performance of managerial functions performed on behalf of a volunteer organization or entity: Provided, That this section shall not exempt a qualified director from liability when he or she is found to be grossly negligent in the performance of his or her duties. Nothing herein shall relieve a volunteer organization or entity from imputed liability for the negligent acts of a qualified director committed within the scope of the qualified director's duties. Nothing in this article shall be construed as a grant of immunity to any person who, through his or her operation of a motor vehicle, causes any injury or damage to another person.


WVC 55-7C-4 §55-7C-4. Applicability of provisions.
The provisions of this article shall not apply to any cause of action arising before the first day of July, one thousand nine hundred eighty-eight.


WVC 55-7D- ARTICLE 7D. GOOD SAMARITAN FOOD DONATION ACT.


WVC 55-7D-1 §55-7D-1. Legislative findings.
The Legislature finds that wholesale and retail food distributors, shipping terminals and other establishments across the state are disposing of food that could be made available to those in need. However, many potential food donors are discouraged from donating this food because of potential liability. The United States Congress has recognized the need to encourage food distributors to make otherwise disposed-of food products available to those in need and has adopted Title 42 United States Code §1791 entitled the "Bill Emerson Good Samaritan Food Donation Act." This federal law encourages state and local governments to enact good samaritan or donor liability limitation laws to encourage private cooperative efforts to provide food for hungry people within their respective jurisdictions. The Legislature finds that this is a worthy goal, and therefore it is appropriate for the state to encourage participation in food donation programs by providing a statutory framework to protect food donators from liability for their good faith efforts.


WVC 55-7D-2 §55-7D-2. Definitions.
As used in this section:

(a) "Apparently fit grocery product" means a grocery product that meets all quality and labeling standards imposed by federal, state and local laws and regulations even though the product may not be readily marketable due to appearance, age, freshness, grade, size, surplus or other conditions.

(b) "Apparently wholesome food" means food that meets all quality and labeling standards imposed by federal, state and local laws and regulations even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus or other conditions.

(c) "Donate" means to give without requiring anything of monetary value from the recipient, except that the term includes donations by one nonprofit organization to another nonprofit organization, notwithstanding that the donor organization has charged a nominal fee to the donee organization, if the ultimate recipient or user is not required to give anything of monetary value.

(d) "Food" means any raw, cooked, processed or prepared edible substance, ice, beverage or ingredient used or intended for use, in whole or in part, for human consumption.

(e) "Gleaner" means a person who harvests a donated agricultural crop for free distribution to the needy or for donation to a nonprofit organization for ultimate distribution to the needy.

(f) "Grocery product" means a nonfood grocery product, including disposable paper or plastic products, household cleaning supplies, laundry detergent or other household item.

(g) "Gross negligence" means voluntary and conscious conduct, including a failure to act, by a person who, at the time of the conduct, knew that the conduct was likely to be harmful to the health or well-being of another person.

(h) "Intentional misconduct" means conduct by a person with knowledge, at the time of the conduct, that the conduct is harmful to the health or well-being of another person.

(i) "Nonprofit organization" means an incorporated or unincorporated entity that:

(1) Is operating for religious, charitable or educational purposes; and

(2) Does not provide net earnings to or operate in any other manner that inures to the benefit of, any officer, employee or shareholder of the entity.

(j) "Person" means an individual, corporation, partnership, organization, association or governmental entity, including a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, nonprofit food distributor or hospital. In the case of a corporation, partnership, organization, association or governmental entity, the term includes an officer, director, partner, deacon, trustee, council member or other elected or appointed individual responsible for the governance of the entity.


WVC 55-7D-3 §55-7D-3. Limiting liability of persons or corporations who donate food or grocery products; exceptions.
(a) A person or gleaner is not subject to civil liability or criminal liability arising from the nature, age, packaging or condition of apparently wholesome food or an apparently fit grocery product which the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution without profit or gain to needy individuals: Provided, That this limitation on liability does not apply to an injury to or the death of an ultimate user or recipient of the food or grocery product which results from an act or omission of the person or gleaner which constitutes gross negligence or intentional misconduct.

(b) A nonprofit organization is not subject to civil liability or criminal liability arising from the nature, age, packaging or condition of apparently wholesome food or an apparently fit grocery product which the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution without profit or gain to needy individuals: Provided, That this limitation on liability does not apply to an injury to or the death of an ultimate user or recipient of the food or grocery product which results from an act or omission of the nonprofit organization which constitutes gross negligence or intentional misconduct.


WVC 55-7D-4 §55-7D-4. Limitation of liability for landowners or occupiers who allow collection or gleaning of donations; exceptions.
Any person who is a landowner or occupier and who allows the collection or gleaning of donations on his or her property by gleaners or representatives of a nonprofit organization, whether paid or unpaid, for ultimate donation without profit or gain to needy individuals is not subject to civil liability or criminal liability that arises due to the injury or death of the gleaner or representative while engaged in collecting or gleaning on the property: Provided, That this limitation on liability does not apply to an injury or death that results from an act or omission of the landowner or occupier which constitutes gross negligence or intentional misconduct.


WVC 55-7D-5 §55-7D-5. Construction.
Nothing in this article shall be construed to supersede state or local health regulations, nor to restrict the state department of health or any county or municipal health officer to regulate, inspect or ban the use of any donated food for human consumption.


WVC -8- ARTICLE 8. ACTIONS ON CONTRACTS.


WVC 55-8-1 §55-8-1. Jurisdiction in proceedings on penal bonds.
Where the proceeding before a court is on a penal bond, with condition for the payment of money, or for the performance or forbearance of any other act or thing, the jurisdiction shall be determined as if the undertaking to pay such money, or to do or forbear the doing of such other act or thing, had been without a penalty.


WVC 55-8-2 §55-8-2. Action of debt or assumpsit on note or writing; action of debt for any past-due installment.
An action of debt or assumpsit may be maintained on any note or writing, whether sealed or not, by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. And an action of debt may also be maintained on any such note or writing for any past-due installment of a debt payable in installments, although other installments thereof be not due.


WVC 55-8-3 §55-8-3. Action of assumpsit for breach of contract.
An action of assumpsit shall lie in all cases to recover damages for the breach of any contract, express or implied, and, if in writing, whether under seal or not.


WVC 55-8-4 §55-8-4. General issue in debt or assumpsit on sealed instrument.
The general issue in an action of debt on a sealed instrument shall be nil debet, and in an action of assumpsit on such instrument it shall be non assumpsit. It shall not be necessary in either case to plead non est factum, but any evidence admissible under a plea of non est factum may be given under the general issue, provided there be filed with such plea of the general issue the affidavit required by section forty-six, article four, chapter fifty-six of this code.


WVC 55-8-5 §55-8-5. Validity of writing payable to person dead at time of execution.
A bond, note or other writing to a person or persons who, or some of whom, are dead at the time of its execution, shall be as valid as if such person or persons were then alive, and may be proceeded on in the same manner as if it had been executed in the lifetime of such person or persons and such person or persons had died after its execution.


WVC 55-8-6 §55-8-6. Liability of personal representative of deceased joint judgment debtor, obligor, promissor or partner.
The representative of one bound with another, either jointly or as a partner, by judgment, bond, note or otherwise, for the payment of a debt, or the performance or forbearance of an act, or for any other thing, and dying in the lifetime of the latter, may be charged in the same manner as such representative might have been charged, if those bound jointly or as partners had been bound severally as well as jointly, otherwise than as partners.


WVC 55 - 8 - 7 §55-8-7. Action against makers, drawers, endorsers, acceptors, assignors or absolute guarantors.
(a) The holder of any note, check, draft, bill of exchange or other instrument of any character, whether negotiable or not or any person entitled to judgment for money on contract, in any action at law or proceeding by notice for judgment on motion thereon, may join all or any intermediate number of the persons liable by virtue thereof, whether makers, drawers, endorsers, acceptors, assignors, or absolute guarantors, or may proceed against each separately, although the promise of the makers, or the obligations of the persons otherwise liable, may be joint or several, or joint and several. If notice or other process is not served upon all persons proceeded against, judgment may nevertheless be given against those liable who have been served as provided by law with notice or other process. These actions or proceedings by notice may be had from time to time in the same or any other court until judgment is obtained against every person liable or his personal representative. However, plaintiff shall have satisfaction of but one of two or more judgments rendered on the same demand.

(b) In any action at law, whether in circuit court or magistrate court, on a note or contract, express or implied, for the payment of money, if: (1) The plaintiff files with the complaint an affidavit made by the plaintiff or an agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that the amount is justly due, and the time from which plaintiff claims interest; and (2) a copy of the affidavit together with a copy of any account filed with the complaint is served upon the defendant, the plaintiff is entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant files an answer denying the claim or otherwise makes an appearance before the court denying that the plaintiff is entitled to recover from the defendant on the claim. The affidavit must show the calculation of the amount sought. The calculation is to also include an itemization of the principal and any interest, insurance or other charges of the original obligation. The calculation is also to include an itemization of all credits to the original obligation including credits to principal, interest, insurance, any other charges, rebates of unearned interest, rebates of insurance, rebates of other charges and proceeds of sale of all collateral. If the defendant's pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due and the case will be tried as to the residue.


WVC 55-8-8 §55-8-8. Joinder of personal representative of decedent as defendant in action under §55-8-7; judgment to affect only estate of decedent.
In every action or motion in which a decedent, if living, could be joined as defendant with another or others under section seven of this article, his personal representative may be joined with him or them, or with the personal representative of any one or more of them. In every such case in which a judgment is rendered against a personal representative, alone or jointly with another or others, such judgment, as to such representative, shall affect only the estate of his decedent, and shall, as to such estate, have the same force and effect as if rendered in an action in which such representative is sued alone. But nothing in this section shall prevent a plaintiff, at his election, from proceeding separately against the representative of any decedent.


WVC 55-8-9 §55-8-9. Action by assignee in own name; defenses and setoff; joinder of claims.
The assignee of any bond, note, account, or writing, not negotiable, or other chose in action arising out of contract or injury to personal or real property, may maintain thereupon any action in his own name, without the addition of "assignee," which the original obligee, promisee, payee, contracting party, or owner of such chose in action might have brought; but shall allow all just defenses and sets-off, not only against himself, but against the assignor, before the defendant had notice of the assignment. In every such action the plaintiff may unite claims payable to him individually with those payable to him as such assignee, provided it be otherwise proper to join them. But nothing in this section shall be construed to make assignable any right of action not otherwise assignable.


WVC 55-8-10 §55-8-10. Assignee entitled to recover from assignor; defenses allowed.
Any assignee mentioned in section nine of this article may recover from any assignor of such writing, whether joined as defendants under section seven of this article, or proceeded against separately, but a remote assignor shall have the benefit of the same defenses as if the suit had been instituted by his immediate assignee.


WVC 55-8-11 §55-8-11. Limitation on jurisdiction of equity as to suit by assignee.
A court of equity shall not have jurisdiction of a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appear that the plaintiff had not an adequate remedy thereon at law.


WVC 55-8-12 §55-8-12. Third party may sue on covenant or promise made for his sole benefit.
If a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain, in his own name, any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise.


WVC 55-8-13 §55-8-13. Action of account.
An action of account may be maintained against the personal representative of any guardian or receiver; and also by one joint tenant, tenant in common, or coparcener or his personal representative against the other, or against the personal representative of the other, for receiving more than his just share or proportion.


WVC 55-8-14 §55-8-14. Agreements to indemnify against sole negligence of the indemnitee, his agents or employees against public policy; no action maintainable thereon; exceptions.
A covenant, promise, agreement or understanding in or in connection with or collateral to a contract or agreement entered into on or after the effective date of this section, relative to the construction, alteration, repair, addition to, subtraction from, improvement to or maintenance of any building, highway, road, railroad, water, sewer, electrical or gas distribution system, excavation or other structure, project, development or improvement attached to real estate, including moving and demolition in connection therewith, purporting to indemnify against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the indemnitee, his agents or employees is against public policy and is void and unenforceable and no action shall be maintained thereon.

This section does not apply to construction bonds or insurance contracts or agreements.


WVC 55 - 8 - 15 §55-8-15. Choice of law for computer information agreements.
A choice of law provision in a computer information agreement which provides that the contract is to be interpreted pursuant to the laws of a state that has enacted uniform computer information transactions act, as proposed by the national conference of commissioners on uniform state laws, or any substantially similar law, is voidable and the agreement shall be interpreted pursuant to the laws of this state if the party against whom enforcement of the choice of law provision is sought is a resident of this state or has its principal place of business located in this state. For purposes of this section, a "computer information agreement" means an agreement that would be governed by the uniform computer transactions act or substantially similar law as enacted in the state specified in the choice of law provision if that state's laws were applied to the agreement.


WVC 55 - 8 - 16 §55-8-16. Choice of Law in Pharmaceutical Product Liability Actions.
     (a) It is public policy of this state that, in determining the law applicable to a product liability claim brought by a nonresident of this state against the manufacturer or distributor of a prescription drug for failure to warn, the duty to warn shall be governed solely by the product liability law of the place of injury ("lex loci delicti").

     (b) This section shall be applicable prospectively to all civil actions commenced on or after July 1, 2011.
WVC -9- ARTICLE 9. GAMING CONTRACTS.


WVC 55-9-1 §55-9-1. Gaming contracts void.
Every contract, conveyance, or assurance, of which the consideration, or any part thereof, is money, property, or other thing won or bet at any game, sport, pastime, or wager, or money lent or advanced at the time of any gaming, betting, or wagering, to be used in being so bet or wagered (when the person lending or advancing it knows that it is to be so used) shall be void as between the parties thereto, and as to all persons except such as hold or claim under them in good faith, for value, and without notice of the illegality of the consideration.


WVC 55-9-2 §55-9-2. Recovery of money or property lost in gaming.
If any person shall lose to another within twenty-four hours ten dollars or more, or property of that value, and shall pay or deliver the same, or any part thereof, such loser may recover back from the winner the money or property, or in lieu of the property the value thereof, so lost, by suit in court, or before a justice, according to the amount or value, brought within three months after such payment or delivery. The loser may so recover from the winner, notwithstanding the payment or delivery was to the winner's indorsee, assignee, or transferee. But nothing in this section shall be so construed as to permit a recovery of such property, or its value, from any person (or those claiming under him) other than the winner, when such person has paid value for such property without notice of illegal consideration under which the winner derived his claim of title.


WVC 55-9-3 §55-9-3. Recovery of gaming losses by bill in equity; repayment discharges winner from punishment.
Such loser may file a bill in equity against such winner, who shall answer the same, and upon discovery and repayment or redelivery of the money or property so won, or its value, such winner shall be discharged from any forfeiture or punishment which he may have incurred for winning the same.


WVC -10- ARTICLE 10. ARBITRATION.


WVC 55-10-1 §55-10-1. Submission of controversy; defenses; setoff.
Persons desiring to end any controversy, whether there be a suit pending therefor or not, may submit the same to arbitration, and agree that such submission may be entered of record in any court. Upon proof of such agreement out of court, or by consent of the parties given in court, in person or by counsel, it shall be entered in the proceedings of such court; and thereupon a rule shall be made that the parties shall submit to the award which shall be made in pursuance of such agreement. When a pending cause is submitted to arbitration, the defendant may make any defense to the plaintiff's claim or demand that he could make under any proper plea filed in court, whether such plea has been filed or not, by giving to the plaintiff reasonable notice in writing of the nature and character of his defense; and in a suit for any debt, he may at the trial before the arbitrators prove and have allowed against such debt any payment or setoff, whether before that time pleaded or not, or whether an account of setoff has before that time been filed or not, which he may plead or file before the arbitrators in such manner as to give the plaintiff notice of its nature, but not otherwise. Although the claim of the plaintiff be jointly against several persons and the setoff be of a debt, not to all, but only to a part of them, this section shall extend to such setoff, if it appear that the persons against whom such claim is stand in the relation of principal and surety, and the person entitled to the setoff be the principal. When the defendant is allowed to file and prove an account of setoff to the plaintiff's demand, the plaintiff shall be allowed to file and prove an account of counter setoff, and make such other defense as he might have made had an original action been brought upon such setoff; and upon the trial the arbitrators shall ascertain the true state of indebtedness between the parties, and the award shall be rendered accordingly.


WVC 55-10-2 §55-10-2. Submission irrevocable; extension of time for award.
No such submission, entered or agreed to be entered of record, in any court, shall be revocable by any party to such submission, without the leave of such court; and such court may, from time to time, enlarge the term within which an award is required to be made.


WVC 55-10-3 §55-10-3. Entry of award as judgment or decree; compensation of arbitrators.
Upon the return of any such award, made under such an agreement (whether any previous record of the submission or rule thereupon has been made or not), it shall be entered up as the judgment or decree of the court, unless good cause be shown against it at the first term after the parties have been summoned to show cause against it. And the court shall make to such arbitrators such reasonable allowance for their services as it may deem proper, to be taxed in the costs of the suit or proceeding, when no provision is made for the pay of the arbitrators in the arbitration agreement, or to be otherwise paid as the court may direct.


WVC 55-10-4 §55-10-4. Setting aside award; equity jurisdiction not affected.
No such award shall be set aside, except for errors apparent on its face, unless it appears to have been procured by corruption or other undue means, or by mistake, or that there was partiality or misbehavior in the arbitrators, or any of them, or that the arbitrators so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. But this section shall not be construed to take away the power of courts of equity over awards.


WVC 55-10-5 §55-10-5. Rehearing by arbitrators.
Where an award is vacated, and the time within which the submission requires the award to be made has not expired, the court, in its discretion, may direct a rehearing by the arbitrators.


WVC 55-10-6 §55-10-6. When award may be modified or corrected.
Any party to such submission may also move to modify or correct such award in the following cases: (a) Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in such award; (b) where the arbitrators shall have awarded upon some matter not submitted to them, nor affecting the merits of the decision of the matter submitted; (c) where the award shall be imperfect in some matter of form not affecting the merits of the controversy, and when, if it had been a verdict, such defect could have been amended or disregarded by the court.


WVC 55-10-7 §55-10-7. Fiduciary may submit to arbitration.
Any personal representative of a decedent, guardian of an infant, committee of an insane person or a convict, or trustee, may file his petition in the circuit court of the county in which he qualified or was appointed, asking permission from such court to submit to arbitration any suit or matter of controversy touching the estate or property of such decedent, infant, insane person, or convict, or in respect to which he is trustee, in which petition shall be stated the facts upon which the petitioner seeks the permission of the court. The court may, in its discretion, grant or refuse the prayer of the petition. If the petition be filed in good faith, and the petition be granted by the court, an order showing that permission to arbitrate was granted shall be entered on the chancery order book of the court, and the award made in any such case shall be binding upon all the parties in interest, and shall be entered as the judgment or decree of the court in the same manner as other submissions and awards are entered, unless set aside by the court. If the petition be filed in good faith and there be no fault or neglect on the part of the fiduciary, he shall not be responsible for any loss sustained by an award adverse to the interests of his decedent, ward, insane person, convict or beneficiary under any such trust.


WVC 55-10-8 §55-10-8. Umpires.
Wherever the word "arbitrators" is used in this chapter, it shall be construed as applying to and including any "umpire" who has participated in the arbitration.


WVC -11- ARTICLE 11. LIS PENDENS.


WVC 55-11-1 §55-11-1. Lis pendens record.
There shall be kept in the office of the clerk of the county court of each county of this state a book to be called the "lis pendens record," which shall be a public record.


WVC 55-11-2 §55-11-2. Notice of lis pendens; recordation and indexing thereof.
Whenever any person shall commence a suit, action, attachment, or other proceeding, whether at law or in equity, to enforce any lien upon, right to, or interest in designated real estate, the pendency of such suit, action, attachment or other proceeding shall not operate as constructive notice thereof to any pendente lite purchaser or encumbrancer of such real estate for a valuable consideration and without notice, until such person shall file for recordation with the clerk of the county court of each county where the real estate sought to be affected is situated, a memorandum or notice of the pendency of such suit, action, attachment or other proceeding, stating the title of the cause, the court in which it is pending, the names of all the parties to such proceeding, a description of the real estate to be affected, the nature of the lien, right or interest sought to be enforced against the same, and name of the person whose estate therein is intended to be affected: Provided, however, That where the lien, right or interest asserted is based upon a judgment, decree, claim, contract or other instrument which has been docketed or recorded according to law in the office of the clerk of the county court of the county wherein the real estate is situated, and has thus become a matter of public record, the failure to file the notice herein mentioned shall not operate to defeat the enforcement of such lien, right or interest in the real estate as against such pendente lite purchaser or encumbrancer.

The clerk of every such county court shall, without delay, record such memorandum or notice in the "lis pendens record," note upon the record the day and hour when such notice was filed for recordation, and index the same in the names of the parties.


WVC 55-11-3 §55-11-3. Limitations on notice of lis pendens.
Constructive notice of the pendency of a suit, action, attachment or other proceeding, arising from the filing for recordation of a notice or memorandum in accordance with the provisions of section two of this article, shall continue to operate as constructive notice thereof to any pendente lite purchaser or encumbrancer of the real estate affected, for a period of ten years next after the date when such notice was filed for recordation. Where constructive notice arises as aforesaid, that notice may be renewed or extended for additional ten year periods by the filing for recordation, as provided in section two of this article, a similar memorandum or notice of lis pendens within ten years from the date of recordation of the last such memorandum or notice.


WVC -12- ARTICLE 12. JUDICIAL SALES.


WVC 55-12-1 §55-12-1. Order for sale of property; terms; sale by special commissioner or receiver; bond; deposit of proceeds; penalties.
A court, in a suit properly pending therein, may make a decree or order for the sale of property in any part of the state, and may direct the sale to be for cash, or on such credit and terms as it may deem best; and it may appoint a special commissioner or special receiver to make such sale. Every special commissioner or special receiver appointed under this section shall be a resident of the state of West Virginia, and he shall make no sale and shall receive no money under a decree or order until he give a bond with approved security before the said court or its clerk, conditioned as the law requires for the faithful accounting therefor and with the further condition that he will deposit in his name as such special commissioner or special receiver all moneys received by him as such special commissioner or special receiver in one or more banks in the county in which the suit or cause is properly instituted, and will not remove the same therefrom without the order or decree of distribution of the presiding judge; and any special commissioner or special receiver violating the conditions of his bond or the provisions of this section by making a sale or receiving money before executing bond as aforesaid, or failing to deposit the money in one or more banks in the county in which the suit or cause is properly instituted as aforesaid, or failing to keep the same therein subject to a decree of distribution, shall be guilty of a misdemeanor and shall be punished by a fine of not less than twenty-five nor more than one hundred dollars and may be imprisoned in the county jail for a term not to exceed ten days.


WVC 55-12-2 §55-12-2. Notice of sale; contents; publication.
Whenever a court shall decree the sale of real estate, if it appear to the court that such real estate is of the value of five hundred dollars or more, it shall prescribe in the decree that such sale shall be advertised in a newspaper by the commissioner or person appointed to make the sale. It shall always be advertised as a Class III legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county where the real estate to be sold is situate. In the advertisement the commissioner shall state the time, terms and place of sale, together with a description of the property to be sold: Provided, That nothing herein shall be construed to limit the power of the court to direct sales of lands to be advertised in newspapers where the value may be less than five hundred dollars.


WVC 55-12-3 §55-12-3. Certificate as to bond to be appended to notice of sale; effect thereof.
Every notice of such sale shall have appended to it the certificate of such clerk that bond and security has been given by the commissioner or special receiver as required by law. When such certificate shall have been published (or posted, when the notice is posted in lieu of publication) with an advertisement of the sale of property, or when such bond shall have been given prior to a sale not publicly advertised, any person purchasing such property in pursuance of such advertisement, or in pursuance of the decree or order of sale, shall be relieved of all liability for the purchase money, or any part thereof, which he may pay to any commissioner or special receiver as to whom a proper certificate shall have been appended to such advertisement, or who shall have given the bond aforesaid.


WVC 55-12-4 §55-12-4. Report of sale.
The said special commissioner or special receiver shall, after the last payment required by said decree of sale or decree confirming said sale is made, make report to the court in writing, at the next term of the court thereafter, showing how the proceeds of said sale have been applied by him; which report shall be approved and entered of record in the chancery order book and filed with the papers in the cause. If from any cause said report showing a final settlement cannot be made within the time aforesaid, the court may enter an order extending the time for a final report to be made. If said commissioner or special receiver fail to make such report, as aforesaid, he shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars.


WVC 55-12-5 §55-12-5. When sheriff to execute decree or order of sale.
Where no special commissioner or special receiver is appointed for the purpose, a decree or order of court for the sale of property shall be executed by the sheriff who attends such court, unless the place of sale be out of his county, in which case the sale shall be by the sheriff of the county wherein the place of sale is. Any sheriff or other officer receiving money under any order or decree shall pay the same and account therefor as the court may order; and if he fail so to do, he and the sureties in his official bond shall be liable therefor.


WVC 55-12-6 §55-12-6. Rate of commission for services of special commissioner.
For the services of commissioners or officers under any decree or order for a sale, including the collection and paying over of the proceeds, there shall not be allowed any greater commission than five percent of the amount received by them, unless the court otherwise order. And if a sale be made by one commissioner or officer and the proceeds be collected by another, the court under whose decree or order they acted shall apportion the commission between them as may be just.


WVC 55-12-7 §55-12-7. Appointment of commissioner to execute deed; effect of execution.
A court of law or equity, in a suit in which it is proper to decree or order the execution of any deed or writing, may appoint a commissioner to execute the same; and the execution thereof shall be as valid to pass, release, or extinguish the right, title and interest of the party on whose behalf it is executed, as if such party had been at the time capable in law of executing the same and had executed it.


WVC 55-12-8 §55-12-8. Title of purchaser not affected by reversal of decree of sale; restitution of proceeds.
If a sale of property be made under a decree or order of a court, and such sale be confirmed, though such decree or order be afterwards reversed or set aside, the title of the purchaser at such sale shall not be affected thereby; but there may be restitution of the proceeds of sale to those entitled.


WVC -12A- ARTICLE 12A. LEASE AND CONVEYANCE OF MINERAL INTERESTS OWNED BY MISSING OR UNKNOWN OWNERS OR ABANDONING OWNERS.


WVC 55-12A-1 §55-12A-1. Legislative intent.
It is the intent of the Legislature, in empowering the circuit courts of the state, as provided by this article, to facilitate development of coal, oil, gas, and other minerals, as part of the public policy of the state, by removing certain barriers to such development caused by interests in minerals owned by unknown or missing owners or by abandoning owners.


WVC 55-12A-2 §55-12A-2. Definitions.
As used in this article, the following definitions shall apply:

(1) "Abandoning owner" means any person, vested with title to any interest in minerals, who is proved to have abandoned the interest, that is, to have relinquished any right to possess or enjoy the interest with the expressed intention of terminating ownership of the interest, but without vesting the ownership in any other person.

(2) "Development of the minerals" or "mineral development" means (a) mining coal by any method, or (b) drilling for and producing oil or gas by conventional techniques, or by enhanced recovery by injection of fluids of any kind into the producing formation, or (c) utilization of a gas-bearing formation as an underground gas storage reservoir within the meaning of article nine, chapter twenty-two of this code, or (d) production of other minerals by any method.

(3) "Interest in minerals" means any interest, real or personal, in coal, oil, gas or any other mineral, for which interest the property taxes are not delinquent as of the date of the filing of a petition under this article.

(4) "Surface owner" means any person vested with any interest in fee in the surface estate overlying the particular minerals sought to be developed under this article. A surface owner's rights under this article shall be subject to any deed of trust or other security instrument, lien, surface lease, easement or other nonpossessory interest in the surface owned by any other person; but such persons other than the surface owner shall have no right to notice and no standing to appear and be heard hereunder.

(5) "Unknown or missing owner" means any person, vested with title to any interest in minerals, whose present identity or location cannot be determined from the records of the clerk of the county commission, the sheriff, the assessor and the clerk of the circuit court in the county in which the interest is located or by diligent inquiry in the vicinity of the owner's last known place of residence, and shall include such owner's heirs, successors and assigns not known to be alive.


WVC 55-12A-3 §55-12A-3. Jurisdiction of the circuit court.
The circuit court of the county wherein the minerals sought to be leased, or the major portion thereof, are situated shall have jurisdiction of the proceedings authorized by this article.


WVC 55-12A-4 §55-12A-4. When court may appoint special commissioner; persons authorized to institute proceedings.
(a) If the title to any mineral interest is vested in an unknown or missing owner or an abandoning owner and it is proved that the development of the minerals would be advantageous to a prudent owner, and if it appears that the development of the minerals furthers the public policy stated in section one of this article, the circuit court of the county having jurisdiction under section three of this article shall have the power to appoint a special commissioner and authorize the special commissioner to sell, execute and deliver a valid lease of the mineral interest on terms and conditions customary in the area for the mineral interest to be leased. The lease shall continue in full force and effect so long as there are operations under its terms unless the lease has previously expired by its own terms.

(b) A petition to the circuit court for the appointment of a special commissioner may be instituted by any person who is:

(1) Vested with an interest in fee in the surface estate overlying the particular minerals sought to be developed; or

(2) Vested with an interest in fee in the particular minerals sought to be developed; or

(3) The lessee or the assignee or successor to the lessee, under a valid and subsisting mineral lease, the lessor of which is a person entitled to file a petition by reason of subdivision (2) of this subsection.


WVC 55-12A-5 §55-12A-5. Persons to be joined as defendants; contents of verified petition; notice; guardian ad litem.
(a) The person filing a petition under this article shall join as defendants to the action all unknown or missing owners or abandoning owners having record title to the particular minerals sought to be developed, and the unknown heirs, successors and assigns of all such owners not known to be alive. All persons not in being who might have some contingent or future interest therein, and all persons whether in being or not in being, having any interest, present, future or contingent, in the mineral interests sought to be leased, shall be fully bound by the proceedings hereunder.

(b) The petition shall be verified. It shall contain allegations of the facts showing (1) the entitlement of the petitioner to file the petition, (2) an identification of the defendants and the mineral interest of each as far as practical under the circumstances, (3) a description of the tract of land which is the subject of the petition, (4) the interest in the particular minerals sought to be developed, (5) the nature of the proposed development of the minerals, (6) the efforts to locate unknown or missing owners, if any, (7) the relinquishment by abandoning owners, if any, of any right to possess or enjoy their interest with the expressed intention of terminating ownership of the interest, but without vesting the ownership in any other person, (8) such other information known to the petitioner which might be helpful in identifying or locating the present owners thereof, and, as exhibits to the petition, (9) a certified copy of the most recent recorded instrument embracing the interest to be leased, (10) such additional instruments as are necessary to show the vesting of title to the minerals in the last record owner thereof, and (11) a certified copy of any competing lease or easement of record, that is to say, a lease or easement from landowners who are not defendants, embracing all or part of the tract of land which is the subject of the petition, for any mineral development by the lessee or easement owner of record of the minerals sought by the petition; and the petition may contain allegations of the facts showing that (12) mineral development would be advantageous to the defendants and would further the public policy stated in section one of this article; and the prayer shall be for the court to order the sale of a lease covering the subject mineral interest under section six of this article, and thereafter, in the case of any defendant or heir, successor or assign of any defendant who does not appear to claim ownership of the defendant's interest for seven years after the date of the lease, for the court to order a conveyance of the defendant's mineral interest under section seven of this article, subject to the lease, to the owner of the surface overlying the mineral interest.

(c) If personal service of process is possible, it shall be made as provided by the West Virginia rules of civil procedure. In addition, immediately upon the filing of the petition, the petitioner shall (1) publish a Class III legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and (2) no later than the first day of publication, file a lis pendens notice in the county clerk's office of the county wherein the mineral estate or the larger portion thereof lies. Both the advertisement and the lis pendens notice shall set forth (1) the names of the petitioner and the defendants, as they are known to be by the exercise of reasonable diligence by the petitioner, and their last known addresses, (2) the date and record data of the instrument or other conveyance which immediately created the mineral interest, (3) an adequate description of the land as contained therein, (4) the source of title of the last known owners of the mineral interests, and (5) a statement that the action is brought for the purpose of authorizing the execution and delivery of a valid and present mineral lease for development of the particular minerals described in the petition, and thereafter, in the case of any defendant or heir, successor or assign of any defendant who does not appear to claim ownership of the defendant's interest within seven years after the date of the lease, for the court to order a conveyance of the defendant's mineral interest under section seven of this article, subject to the lease, to the owner of the surface overlying the mineral interest. In addition, the petitioner shall send notice by certified mail, return receipt requested, to the last known address, if there be such, of all named defendants. In addition, the court may in its discretion order advertisement elsewhere or by additional means if there is reason to believe that additional advertisement might result in identifying and locating the unknown or missing owners.

(d) The circuit court shall appoint a guardian ad litem for any unknown or missing owner or abandoning owner and their unknown heirs, successors and assigns not known to be alive. The compensation and expenses of the guardian ad litem shall be fixed by the court and paid by the petitioner under terms ordered by the court.


WVC 55-12A-6 §55-12A-6. Appointment of a special commissioner; sale of lease; special commissioner's report; when court not to authorize lease; investment of lease proceeds; search for owner; period during which unknown or missing owner or abandoning owner may establish identity and title.
(a) If upon presentation to the court of the petition, and the failure of the named defendants or their heirs, successors and assigns to answer the petition and deny material allegations in the complaint within the time to answer under the West Virginia rules of civil procedure, the court may accept the allegations of the verified petition, excluding allegations made upon information and belief, as prima facie proof of the facts alleged; and if it further appears to the court that (1) the petitioner has met the requirements for a lease under this article, including the evidentiary requirements of section five-b and the notice requirements of section five-c, (2) a diligent effort has been made to identify and locate the present unknown or missing owners and abandoning owners, and (3) the mineral development sought in the petition would be advantageous to the defendants and would further the public policy stated in section one of this article, the court shall appoint a special commissioner therefor and authorize the special commissioner to sell, execute and deliver a valid lease covering the mineral interests in and underlying the lands for the particular mineral development sought in the petition: Provided, That no order authorizing the special commissioner to sell, execute or deliver a lease of said mineral interest, shall be entered sooner than six months following filing of the petition, and the court may in its discretion direct the petitioner to make further efforts to locate the missing or unknown owners or abandoning owners.

(b) Should the court appoint a special commissioner pursuant to subsection (a) of this section, the order of the court shall also (1) require the special commissioner to give a bond in favor of the owners of the mineral interest which is to be leased in a specified amount, (2) provide for all of the rental, royalty, and other provisions of the lease which the special commissioner is authorized to make, except for the initial monetary consideration for the sale of the lease, (3) specify whether the special commissioner's sale of the lease shall be public or private, (4) if the order provides for a public sale, determine the notice to be given, and (5) direct that the special commissioner be paid compensation and expenses, including the bond expense, as provided in section eight of this article in an amount agreed upon by the special commissioner and the petitioner; but if no agreement is made within thirty days after the special commissioner is appointed, then the court shall fix the compensation and expenses. The sale shall be for a monetary consideration payable on confirmation of sale. No appraisal shall be required.

(c) The special commissioner shall proceed in compliance with the provisions of the order to sell the lease authorized thereby; and if two or more persons offer to purchase the lease, the sale shall be made to the offeror whose offer is deemed most beneficial to the unknown or missing owner or abandoning owner, and most consistent with the public policy stated in section one of this article. After making the sale, the special commissioner shall make a report thereof to the court. Upon filing the report, the court may hear evidence as to whether or not the sale price and the provisions of the lease are reasonable; and if the court is satisfied with the sale price and the provisions of the lease, the sale of the lease shall be confirmed by the court, whereupon the lease shall be executed, acknowledged and delivered by the special commissioner.

(d) The court shall not authorize a special commissioner's lease of the mineral interest of any owner whose identity and whereabouts is known, or can be ascertained by diligent inquiry, or is discovered as a result of the action brought hereunder, unless such owner is proved to be an abandoning owner who fails to answer the subject petition, notice having been given as provided in section five of this article.

(e) Any person purporting to be the unknown or missing owner or an abandoning owner, or any heir, successor or assign of an unknown or missing owner or abandoning owner, may appear as a matter of right at any time prior to the entry of judgment confirming the special commissioner's lease, for the purpose of establishing his title to a mineral interest. If the appearing owner's claim is established to the satisfaction of the court, the court shall dismiss the action as to the appearing owner's interest at plaintiff's cost.

(f) The lessee shall promptly deliver the sale consideration and subsequent proceeds, if any, from the lease to the special receiver of the court, who shall hold and invest the same for the use and benefit of the unknown or missing owners or abandoning owners. The court, upon its own motion or upon motion of the special receiver, may at any time authorize the special receiver to expend an amount not to exceed ten percent of the funds collected by the special receiver for the purpose of instituting a search for the unknown or missing owners.

(g) Within seven years after the date of the special commissioner's lease, any unknown or missing owner or abandoning owner of a mineral interest leased hereunder may file a motion with the court to re-open the action, and may thereupon present such proof as the court may deem necessary to establish the movant's identity and title to the mineral interest or any part thereof. If the court finds that the identity and interest of the movant has been established, and that the movant has manifested a desire to obtain the benefits of the proceeds resulting from the lease, the court shall enter an order (1) documenting the movant's title, (2) assigning all future attributable proceeds to the movant and (3) directing the special receiver to pay over the funds then held attributable to the movant's interests. The circuit clerk of the court shall file and record a certified copy of the order with the clerk of the county commission of each county wherein such land is; and from the time of recordation, the movant shall be deemed the owner of the mineral interest specified in the order.


WVC 55-12A-7 §55-12A-7. When special commissioner may convey title in mineral interest to surface owner; form of deed; payment to surface owner; final report of special commissioner.
(a) (1) If an owner of any mineral interest leased under section six of this article remains unknown or missing, or does not disavow the abandonment, for a period of seven years from the date of the special commissioner's lease, the special receiver shall report the same to the court, whereupon the court shall enter an order naming those who then appear to be surface owners as additional parties and giving notice to them, pursuant to the West Virginia rules of civil procedure, of an opportunity to appear and present proof of ownership in fee of the surface estate. Upon a finding by the court of the present ownership in fee of the surface estate, the court shall (i) order the special commissioner to convey to the proven surface owner, subject to the special commissioner's lease, the mineral interest specified in the motion, by a deed substantially in the form specified in subsection (b) of this section and (ii) order the special receiver to pay to the surface owner the funds which have accrued to the credit of the mineral interests specified in the motion to the date of his report after payment of all allowable fees, expenses and court costs, including special commissioner's fees paid or to be paid in amounts determined by the court. After the date of the special commissioner's deed, the surface owner grantee shall be entitled to receive all proceeds under the lease attributable to the mineral interests specified in the deed.

(2) If the boundaries of the mineral tract subject to the special commissioner's lease encompass two or more surface tracts, a separate deed shall be made for the mineral interest underlying each surface tract. If a surface tract is owner by more than one person, the deed respecting that surface tract shall convey the mineral interest according to the surface estate and interest of each surface owner.

(b) The special commissioner's deed may be made in the following form, or to the same effect:

This deed, made the _____day of _________________, 19___, between ______________________________, special commissioner, grantor, and _____________________________, grantee,

Witnesseth, that whereas, grantor, in pursuance of the authority vested in him by an order of the circuit court of _____________ county, West Virginia, entered on the _____day of _____________, 19___, in civil action no. ________ therein pending, to convey the mineral interest more particularly described below to the grantee,

Now, therefore, this deed witnesseth: That grantor grants unto grantee, subject to the special commissioner's lease mentioned below, and further subject to all other liens and encumbrances of record, that certain mineral interest in _______________ county, West Virginia, more particularly described in the cited order of the circuit court as follows: (here insert the description in the order); and being (here specify "all" or "a portion") of the mineral interest described in that certain special commissioner's lease dated ___________, 19___, of record in the office of the clerk of __________ county, in _________book______, at page ____.

Witness the following signature.

_________________________________

Special Commissioner

(c) Upon the delivery of the deed or deeds and the payment or payments as directed in subsection (a) of this section, the special commissioner shall make a final report to the court; and upon approval thereof, the court shall order the discharge of the special commissioner's bond.

(d) Prior to the delivery of the special commissioner's deed, no deed from a surface owner to another shall sever ownership of the surface as such from ownership of any benefits under this article. Any deed purporting to create such a severance shall be void.


WVC 55-12A-8 §55-12A-8. Petitioner's attorneys' fees, expenses and court costs.
All of the petitioner's attorneys' fees, expenses and court costs incident to the original proceedings authorized under this article shall be paid by the lessee, if a lease is executed pursuant hereto, and by the petitioner if for any reason no lease is executed. After the date of the special commissioner's lease, all expenses and court costs shall be paid out of funds in the hands of the special receiver to the extent such funds are available.


WVC 55-12A-9 §55-12A-9. Limitation of action by unknown or missing owner or abandoning owner.
After the expiration of seven years from the date of the special commissioner's lease, no action may be brought by any unknown or missing owner or abandoning owner or any heir, successor or assign thereof either to recover any past or future proceeds accrued or to be accrued from the lease herein authorized, or to recover any right, title or interest in and to the mineral interest subject to the lease.


WVC 55-12A-10 §55-12A-10. Severability.
If any part of this article is adjudged to be unconstitutional or invalid, such invalidation shall not affect the validity of the remaining parts of this article; and to this end, the provisions of this article are hereby declared to be severable.


WVC -13- ARTICLE 13. UNIFORM DECLARATORY JUDGMENTS ACT.


WVC 55-13-1 §55-13-1. Power of courts to declare rights, status and other legal relations; objections; form and effect of declaration.
Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.


WVC 55-13-2 §55-13-2. Who may have determination and obtain declaration.
Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.


WVC 55-13-3 §55-13-3. Construction of contract before or after breach.
A contract may be construed either before or after there has been a breach thereof.


WVC 55-13-4 §55-13-4. Declaration concerning trusts and estates.
Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic or insolvent, may have a declaration of rights or legal relations in respect thereto:

(a) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or

(b) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

(c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.


WVC 55-13-5 §55-13-5. No restriction on powers conferred by §55-13-1.
The enumeration in sections two, three, and four does not limit or restrict the exercise of the general powers conferred in section one, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.


WVC 55-13-6 §55-13-6. When court may refuse judgment.
The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.


WVC 55-13-7 §55-13-7. Review.
All orders, judgments and decrees under this article may be reviewed as other orders, judgments and decrees.


WVC 55-13-8 §55-13-8. Further relief.
Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.


WVC 55-13-9 §55-13-9. Trial and determination of issues of fact.
When a proceeding under this article involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.


WVC 55-13-10 §55-13-10. Costs.
In any proceeding under this article the court may make such award of costs as may seem equitable and just.


WVC 55-13-11 §55-13-11. Parties.
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.


WVC 55-13-12 §55-13-12. Article remedial; liberal construction and administration thereof.
This article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.


WVC 55-13-13 §55-13-13. "Person" defined.
The word "person," wherever used in this article, shall be construed to mean any person, partnership, joint-stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.


WVC 55-13-14 §55-13-14. Severability.
The several sections and provisions of this article, except sections one and two, are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the article invalid or inoperative.


WVC 55-13-15 §55-13-15. Interpretation and construction of article.
This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.


WVC 55-13-16 §55-13-16. Citation of article.
This article may be cited as the "Uniform Declaratory Judgments Act."


WVC -14- ARTICLE 14. UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT.


WVC 55-14-1 §55-14-1. Definitions.
In this article "foreign judgment" means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.


WVC 55-14-2 §55-14-2. Filing and status of foreign judgments.
A copy of any foreign judgment authenticated in accordance with an act of Congress or the statutes of this state may be filed in the office of the clerk of any circuit court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of any circuit court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner: Provided, That notwithstanding any other provision of this article to the contrary, a citizen of this state shall be entitled to the same exemption from execution, attachment or seizure and sale as a citizen of the state where the original judgment was entered. A debt collector seeking to enforce a foreign judgment in this state shall ensure that any suggestee execution or other legal process seeking to seize property of a debtor pursuant to a foreign judgment shall clearly state, on the face of the petition or other filing, any property exempt in the state in which the original judgment was entered and it shall specify that the property is exempt from execution, attachment or seizure and sale in this state. Any person seeking to enforce a foreign judgment in this state who violates any provision of this section shall be liable to the person against whom the judgment is sought to be enforced for actual damages and, in addition thereto, shall be liable to such person for a penalty in an amount not more than one thousand dollars. Any person seeking to enforce a foreign judgment in this state who willfully violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in jail not more than one year, or both fined and confined.


WVC 55-14-3 §55-14-3. Notice of filing.
(a) At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk of the circuit court an affidavit setting forth the name and last known post-office address of the judgment debtor and the judgment creditor.

(b) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post-office address of the judgment creditor and the judgment creditor's lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.

(c) No execution or other process for enforcement of a foreign judgment filed hereunder may issue until thirty days after the date the judgment is filed.


WVC 55-14-4 §55-14-4. Stay.
(a) If the judgment debtor shows the circuit court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.

(b) If the judgment debtor shows the circuit court any ground upon which enforcement of a judgment of any court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.


WVC 55-14-5 §55-14-5. Fees.
Fees for filing, docketing, transcription or other enforcement proceedings shall be as provided for in section eleven, article one, chapter fifty-nine of this code.


WVC 55-14-6 §55-14-6. Optional procedure.
The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this article remains unimpaired.


WVC 55-14-7 §55-14-7. Uniformity of interpretation.
This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.


WVC 55-14-8 §55-14-8. Short title.
This article may be cited as the "Uniform Enforcement of Foreign Judgments Act."


WVC 55-15- ARTICLE 15. ALTERNATIVE DISPUTE RESOLUTION COMMISSION.


WVC 55-15-1 §55-15-1. Legislative findings and purpose.
(a) The Legislature hereby finds and declares:

(1) That due to growing concern with limits on access to justice arising from court case backlog, delays and costs, that it has been beneficial to implement an alternative dispute resolution program in various circuit courts of our state and in certain administrative proceedings;

(2) That since implementation, these procedures have proven to be a highly-effective method for resolving disputes without resorting to adjudicatory measures, thereby easing the burden of cases pending in the judicial system;

(3) That alternative dispute resolution is continually changing the perceptions regarding the appropriateness and effectiveness of court procedures, and that the continuation and growth of these procedures is important in enhancing the quality of life for the citizens of this state;

(4) That the effectiveness of the alternative dispute resolution programs implemented in the state and in other states has increased but more definition and synthesis is necessary to better serve the citizens; and

(5) That the purpose of this article is to create a commission, as hereinafter constituted and appointed, to study various facets of alternative dispute resolution including, but not limited to, defining the objectives and goals of the programs, the types of disputes to be resolved, the promulgation of a system to ensure appropriate uniformity of alternative dispute resolution programs statewide, certification or licensure of persons engaged in providing services in alternative methods of resolving disputes and the structuring and funding of such programs.

(b) The Legislature further declares that it recognizes that the provisions of section 1, article V of the constitution of West Virginia prohibit any person from exercising the powers of more than one branch or department of government at the same time; however, it is the express purpose, intent and finding of the Legislature that those members of the commission who are members of the Legislature are acting as such while serving on the commission and in the furtherance of the Legislature's inherent right and power to investigate and inquire into and report on those matters which are legitimately within its powers, and that since the commission's role and duties are investigative and reportive in nature, the service upon the commission by its legislative members is not violative of nor inimical to the constitutional mandate with respect to the separation of governmental powers.


WVC 55-15-2 §55-15-2. Alternative dispute resolution commission created; composition; appointment of members; chairman.
The West Virginia alternative dispute resolution commission is hereby created. The commission shall consist of eleven members, who are designated or to be appointed as follows:

(a) The chief justice of the supreme court of appeals of West Virginia, or his or her designee, shall serve as the chair of the commission, and shall appoint two additional members, one of whom is currently serving as a circuit court judge;

(b) The speaker of the House of Delegates and the president of the Senate, or their respective designee, shall be members, and the speaker of the House of Delegates and the president of the Senate shall appoint one additional member;

(c) Two members shall be appointed by the governor who shall be representative private citizens;

(d) The dean of the West Virginia university college of law shall appoint one faculty member to the commission who possesses knowledge and experience unique in alternative dispute resolution processes; and

(e) The executive director of the West Virginia state bar.


WVC 55-15-3 §55-15-3. Compensation and expenses of commission members; expenses of commission.
(a) Members of the commission shall be reimbursed for their reasonable and necessary travel and other expenses actually incurred in connection with the performance of their duties as members of the commission including, but not limited to, their attendance at meetings thereof.

(b) The expenses of the members of the commission shall be paid from legislative appropriations.

(c) Members of the commission shall receive no other compensation for their services on or with the commission other than the reimbursement of expenses as provided in this section.

(d) The president of the Senate and the speaker of the House of Delegates shall designate a member of the legislative staff to serve as counsel and reporter to the commission.


WVC 55-15-4 §55-15-4. Powers and duties of the commission.
The commission shall have the following powers, duties and responsibilities:

(a) To conduct a thorough and comprehensive study into the various ways and means of financing and structuring the alternative dispute resolution programs, define the goals and objectives of alternative methods of resolving disputes in the state, determine types of disputes to be included within any alternative dispute resolution programs, evaluate the advantages of establishing certification or licensure of persons engaged in providing services in alternative methods of resolving disputes and propose a system to ensure appropriate uniformity of alternative dispute resolution programs statewide;

(b) To request such information and data from any state officer or agency or from any political subdivision of the state as the commission may deem necessary to assist it in the performance of its duties and it shall be the duty of all such officers and agencies to cooperate with and assist the commission in and about the completion of its studies and deliberations;

(c) To confer with representative citizens, the judiciary, the legal profession and other groups of the private and business sectors with respect to all matters deemed relevant to the duties of the commission;

(d) To notify the chair of the commission on the future of the judiciary so that the commission established herein may share information with such commission on the future of the judiciary;

(e) To perform every other act necessary or desirable to carry out any of the other powers, duties or responsibilities enumerated in this article; and

(f) To file its final report with respect to its findings and conclusions, together with any legislation it deems appropriate to recommend and as it deems necessary to carry its findings and conclusions into effect with the president of the Senate and the speaker of the House of Delegates not later than the thirtieth day of November, one thousand nine hundred ninety-eight.


WVC 55-15-5 §55-15-5. Meetings of the commission; quorum.
The commission shall meet at such times and places as its chair shall deem to be proper and expedient. Such meetings shall be coordinated with and be in conjunction with the monthly meeting of the joint committee on government and finance insofar as the same may be practicable. Nothing herein shall preclude the commission from meeting with such frequency or at such times and places as it may determine. The presence of no less than six members of the commission shall constitute a quorum for the purposes of conducting any business.


WVC 55-15-6 §55-15-6. Interpretation of article; termination of commission.
(a) The provisions of this article shall be liberally construed in order to permit the commission sufficient latitude for the orderly completion of its studies and duties.

(b) The commission shall cease its existence on the thirty-first day of December, one thousand nine hundred ninety-eight.


WVC 55 - 16 - ARTICLE 16. CIVIL REMEDY FOR WORTHLESS CHECK.


WVC 55 - 16 - 1 §55-16-1. Civil remedy for making, drawing, issuing, uttering or delivery of worthless check, draft or order.

(a) As used in this section, "check" means a draft or other written order payable on demand and drawn on a bank or depository.

(b) If the maker or drawer of a check: (1) Draws, makes, utters, or issues and delivers to another a check drawn on a bank or depository that refuses to honor it because the maker or drawer does not have sufficient funds with which to pay the check on deposit in or credit with the bank or depository upon presentation; and (2) knowingly fails to pay the amount of the check in cash to the payee, within thirty days following written demand, the payee has a cause of action against the drawer or maker.

(c) In an action under this section, the payee may be awarded:

(1) The face amount of the check, less any money received by the payee in partial payment of the debt of the check;

(2) Damages of five hundred dollars or the face amount of the check, whichever is less; and

(3) Reasonable costs incurred in filing the action.

(d) In an action under this section, the court or jury may waive all or part of the damages or fees authorized by subdivision (2), subsection (c) of this section upon a finding that the defendant's failure to satisfy the dishonored check was due to the defendant's recent discharge from his or her employment, personal or family illness, or personal or family catastrophic loss.

(e) The written demand required in subsection (a) of this section shall:

(1) Describe the check and the circumstances of its dishonor;

(2) Contain a demand for payment and a notice of intent to

file suit for damages under this section if payment is not received within thirty days; and

(3) Be delivered by personal service, certified mail or regular mail to the defendant at his or her last known address: Provided, That service by regular mail shall be supported by either a post-marked certificate of mailing or a notarized affidavit of service.

(f) It is an affirmative defense to any claim under this section that:

(1) Full satisfaction of the amount of the check was made before the beginning of the action; or

(2) The bank or depository erred in dishonoring the check.

(g) No action may be brought pursuant to both this section and sections thirty-nine-a through thirty-nine-h, article three, chapter sixty-one of this code on the same check.


WVC 55 - 17 - ARTICLE 17. PROCEDURES FOR CERTAIN ACTIONS AGAINST THE STATE.


WVC 55 - 17 - 1 §55-17-1. Findings; purpose.
(a) The Legislature finds that there are numerous actions, suits and proceedings filed against state government agencies and officials that may affect the public interest. Depending upon the outcome, this type of litigation may have significant consequences that can only be addressed by subsequent legislative action. In these actions, the Legislature is not directly involved as a party. The Legislature is not a proper party to these actions because of an extensive structure of constitutional protections established to safeguard the prerogatives of the legislative branch under our governmental system of checks and balances. Government agencies and their officials require more notice of these actions and time to respond to them and the Legislature requires more timely information regarding these actions, all in order to protect the public interest. The Legislature further finds that protection of the public interest is best served by clarifying that no government agency may be subject to awards of punitive damages in any judicial proceeding.

(b) The Legislature further finds that there are numerous actions, suits and proceedings filed on behalf of the State of West Virginia or a government agency thereof, that may affect the public interest. Depending upon the outcome, this type of litigation may have significant consequences that can only be addressed by subsequent legislative action. In such litigation, the Governor, Department of Administration and the Legislature may not be directly involved as parties. Additionally, the Governor, Department of Administration and the Legislature need advance notice of potential moneys that may become available as a result of seizure or forfeiture of assets under state or federal criminal law. The Governor, Department of Administration and the Legislature require more timely information regarding these actions in order to protect the public interest. The Legislature further finds that protection of the public interest is best served by requiring notice to the Governor, the Secretary of the Department of Administration, the President of the Senate and the Speaker of the House of Delegates of any action brought on behalf of the state or a government agency thereof, which may result in a judgment, award or settlement and when the state or a government agency thereof, becomes eligible for moneys from state or federal seizure or forfeiture of assets in criminal cases.

(c) It is the purpose of this article to establish procedures to be followed in certain civil actions filed on behalf of or against state government agencies and their officials.


WVC 55 - 17 - 2 §55-17-2. Definitions.
For the purposes of this section:

(1) "Action" means a proceeding instituted against a governmental agency in a circuit court or in the supreme court of appeals, except actions instituted pursuant to statutory provisions that authorize a specific procedure for appeal or similar method of obtaining relief from the ruling of an administrative agency and actions instituted to appeal or otherwise seek relief from a criminal conviction, including, but not limited to, actions to obtain habeas corpus relief.

(2) "Government agency" means a constitutional officer or other public official named as a defendant or respondent in his or her official capacity, or a department, division, bureau, board, commission or other agency or instrumentality within the executive branch of state government that has the capacity to sue or be sued;

(3) "Judgment" means a judgment, order or decree of a court which would:

(A) Require or otherwise mandate an expansion of, increase in, or addition to the services, duties or responsibilities of a government agency;

(B) Require or otherwise mandate an increase in the expenditures of a government agency above the level of expenditures approved or authorized before the entry of the proposed judgment;

(C) Require or otherwise mandate the employment or other hiring of, or the contracting with, personnel or other entities by a government agency in addition to the personnel or other entities employed or otherwise hired by, or contracted with or by the government agency;

(D) Require or otherwise mandate payment of a claim based upon a breach of contract by a government agency; or

(E) Declare an act of the Legislature unconstitutional and, therefore, unenforceable.


WVC 55 - 17 - 3 §55-17-3. Preliminary procedures; service on Attorney General; notice to the Legislature.
(a)(1) Notwithstanding any provision of law to the contrary, at least thirty days prior to the institution of an action against a government agency, the complaining party or parties must provide the chief officer of the government agency and the Attorney General written notice, by certified mail, return receipt requested, of the alleged claim and the relief desired. Upon receipt, the chief officer of the government agency shall forthwith forward a copy of the notice to the President of the Senate and the Speaker of the House of Delegates. The provisions of this subdivision do not apply in actions seeking injunctive relief where the court finds that irreparable harm would have occurred if the institution of the action was delayed by the provisions of this subsection.

(2) The written notice to the chief officer of the government agency and the Attorney General required by subdivision (1) of this subsection is considered to be provided on the date of mailing of the notice by certified mail, return receipt requested. If the written notice is provided to the chief officer of the government agency as required by subdivision (1) of this subsection, any applicable statute of limitations is tolled for thirty days from the date the notice is provided and, if received by the government agency as evidenced by the return receipt of the certified mail, for thirty days from the date of the returned receipt.

(3) A copy of any complaint filed in an action as defined in section two of this article shall be served on the Attorney General.

(b) (1) Notwithstanding any procedural rule or any provision of this code to the contrary, in an action instituted against a government agency that seeks a judgment, as defined in section two of this article, the chief officer of the government agency which is named a party to the action shall, upon receipt of service, forthwith give written notice thereof, together with a copy of the complaint filed, to the President of the Senate and the Speaker of the House of Delegates.

(2) Upon request, the chief officer of the government agency shall furnish the President and Speaker with copies of pleadings filed and discovery produced in the proceeding and other documents, information and periodic reports relating to the proceeding as may be requested.

(3) The chief officer of a government agency who fails without good cause to comply with the provisions of this subsection is guilty of misfeasance. This subsection does not require a notice or report to the President and the Speaker that no action has been instituted or is pending against a governmental agency during a specified period.

(c) The requirements for notice and delivery of pleadings and other documents to the President of the Senate or Speaker of the House of Delegates pursuant to the provisions of this section do not constitute a waiver of any Constitutional immunity or protection that proscribes or limits actions, suits or proceedings against the Legislature or the State of West Virginia.

(d) The exercise of authority granted by the provisions of this section does not subject the Legislature or any member of the Legislature to any terms of a judgment.


WVC 55 - 17 - 4 §55-17-4. Procedures pending action.
Notwithstanding any other provisions of law to the contrary:

(1) A government agency shall be allowed sixty days to serve an answer to a complaint or petition for which a summons has been issued and served upon a government agency;

(2) Judgment by default may not be entered against a government agency in an action as defined in section two of this article unless the court, after a hearing on a motion for default judgment, finds that the government agency clearly intends to fail to appear, plead or otherwise defend in the action; and

(3) No government agency may be ordered to pay punitive damages in any action.


WVC 55 - 17 - 5 §55-17-5. Notice of settlement, seizure or forfeiture.
(a) So that the Governor, the Department of Administration and the Legislature may be aware of potential awards, the person or entity bringing any action on behalf of the State of West Virginia, or a government agency thereof, which could result in settlement or judgment shall upon commencement of the action and prior to entering into any settlement agreement which directs how the money should be expended, notify and provide copies of pleadings and related documents to the Governor, the Secretary of the Department of Administration, the President of the Senate and the Speaker of the House of Delegates.

(b) When a government agency becomes aware that moneys may be available to them from a state or federal seizure or forfeiture in a criminal case they shall notify the Governor, the Secretary of the Department of Administration, the President of the Senate and the Speaker of the House of Delegates: Provided, That the total value of the assets to be seized or forfeited exceeds two hundred and fifty thousand dollars.


WVC 55 - 17 - 6 §55-17-6. Construction of article.
(a) It is the express intent of the Legislature that the provisions of this article be liberally construed to effectuate the public policy set forth in section one of this article.

(b) The provisions of this article may not be construed to impose any liability upon a state agency from which the agency is otherwise immune.


WVC 55 - 18 - ARTICLE 18. LIMITATIONS OF ACTIONS REGARDING FIREARMS MANUFACTURE AND SALE.


WVC 55 - 18 - 1 §55-18-1. Legislative declarations and purpose.

The Legislature hereby finds and declares:

(a) The lawful design, marketing, manufacture or sale of firearms or ammunition to the public is not an unreasonably dangerous activity and does not constitute a nuisance per se; (b) To the extent the constitution of this state and the United States protect citizens' rights to keep and bear arms, the Legislature finds and declares that it is within the strict prerogative of its own authority, and not the authority of any county or municipality, to determine whether any manufacturer, dealer or seller of firearms has engaged in any act or omission that would create a cognizable action for damages, injunction or otherwise.


WVC 55 - 18 - 2 §55-18-2. Authority to bring suit against manufacturers, sellers, trade associations or dealers of firearms.
The authority to bring suit and the right to recover against any firearms or ammunition manufacturer, seller, trade association or dealer of firearms by or on behalf of any county or municipality in this state for damages, abatement or injunctive relief resulting from or relating to the design, manufacture, marketing, or sale of firearms or ammunition to the public is reserved exclusively to the state: Provided, That nothing contained in this article may prohibit a county or municipality from bringing an action for breach of contract or warranty as to firearms or ammunition purchased by the county or municipality.


Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.

This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature ****