COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 194
(By Senators Kessler and Plymale)
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[Originating in the Committee on the Judiciary;
reported January 26, 2007.]
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A BILL to amend and reenact §
58-5-14 of the Code of West Virginia,
1931, as amended, relating to appeal bonds; limiting bond
amounts; consolidating multiple judgments for bonding
purposes;
and providing exceptions to bonding limitations.
Be it enacted by the Legislature of West Virginia:
That §
58-5-14 of
the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-14. Appeal bond generally; limitation on amount.
(a)When required by the court, an appeal shall may not take
effect until bond is given by the appellants or petitioners, or one
of them, or some other person, in a penalty to be fixed by the
court or judge by or in which the appeal is allowed or entered with
condition: If a supersedeas be awarded, to abide by and perform
the judgment and to pay to the opposite party, and to any person
injured, all such costs and damages as they, or either of them, may incur or sustain by reason of said appeal, in case such judgment,
or such part, be affirmed, or the appeal be dismissed, and also, to
pay all damages, costs and fees, which may be awarded against or
incurred by the appellant or petitioners; and if it is an appeal
from a judgment dissolving an injunction, or dismissing a bill of
injunction, with a further condition, to indemnify and save
harmless the surety in the injunction bond against loss or damage
in consequence of his or her suretyship; and with condition when no
supersedeas is awarded to pay such specific damages and such costs
and fees as may be awarded or incurred: Provided, That whenever an
appeal is awarded in any action or suit wherein a judgment for the
payment of money has been entered against an insured in an action
which is defended by an insurance corporation, or other insurer, on
behalf of the insured under a policy of insurance, the limit of
liability of which is less than the amount of said judgment,
execution on the judgment to the extent of the policy coverage
shall be stayed until final determination of such appeal
and no
execution shall be issued, or action brought, maintained or
continued against such insured, insurance corporation or other
insurer, for the amount of such judgment so stayed, by either the
injured party, the insured or the legal representative, heir or
assigns of any of them, during the pendency of such proceeding,
provided such insurance corporation, or other insurer, shall:
(1) File with the clerk of the court in which the judgment was
entered a sworn statement of one of its officers describing the
nature of the policy and the amount of coverage thereof;
(2) Give or cause to be given by the judgment debtor or some
other person for him or her
a bond in a penalty to be fixed by the
court or judge by or in which the appeal is allowed or entered, not
to exceed the amount of such insurance coverage set out in the
sworn statement above required, with condition to pay the amount of
such coverage upon said judgment if the judgment or such part is
affirmed or the appeal is dismissed, plus interest on said sum and
cost;
(3) Serve a copy of such sworn statement and bond upon the
judgment creditor or his or her
attorney;
(4) Deliver or mail to the insured at the latest address of
the insured appealing upon the records of such insurance
corporation, or other insurer, written notice that execution on
such judgment to the extent that it is not covered by such
insurance is not stayed in respect to the insured: Provided, That
the filing of a bond by the insured or someone for him or her,
conditioned upon the payment of the balance of the judgment and
interest not stayed by the insured as aforesaid if the judgment is
affirmed or the appeal is dismissed, shall stay execution on the
balance of said judgment not covered by such insurance: Provided,
however, That the filing of such statement and bond hereunder by an
insurance corporation or other insurer shall not thereby make such
insurance corporation or other insurer a party to such action,
either in the trial court or in the appellate court.
(b) Except for bonds required under section four, article
eleven-a, chapter four
of this code, an appeal bond required by a court in accordance with this section may not exceed the amount of
the total judgment, which includes the actual judgment, plus costs,
interest and fees: Provided, That where the judgment exceeds
twenty-five million dollars, the
court shall require an appeal bond
of no more than
either
twenty-five million dollars
or fifty percent
of the judgment debtor's net worth
, at the election of the judgment
debtor. For purposes of this subsection, multiple judgments
resulting from cases that have been consolidated or aggregated for
purpose of trial proceedings shall be treated as a single judgment.
(c) If the appellee proves by a preponderance of the evidence
that the appellant is dissipating or diverting assets outside the
ordinary course of business, thereby impairing the appellant's
ability to pay the ultimate judgment,
the court is not bound by the
limitations stated in subsection (b) of this section and may set
the appeal bond at any amount not to exceed the total judgment.
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(NOTE: The purpose of this bill is to
limit bond amounts; to
consolidate multiple judgments for bonding purposes;
and to provide
exceptions to bonding limitations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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