West Virginia State Law Profile June George N. Stewart and Dara A. DeCourcy Zimmer Kunz, PLLC

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1 George N. Stewart and Dara A. DeCourcy Zimmer Kunz, PLLC Table of Contents Overview of the West Virginia Court System A. Trial Courts B. Appellate Courts Procedural A. Venue B. Statute of Limitations C. Time for Filing an Answer D. Dismissal Re-Filing of Suit West Virginia State Law Profile June 2015 Liability A. Negligence B. Negligence Defenses C. Gross Negligence, Recklessness, Willful and Wanton Conduct D. Negligent Hiring and Retention E. Negligent Entrustment F. Dram Shop G. Joint and Several Liability H. Wrongful Death and/or Survival Actions I. Vicarious Liability J. Exclusivity of Workers Compensation Damages A. Statutory Caps on Damages B. Compensatory Damages for Bodily Injury C. Collateral Source D. Pre-Judgment / Post Judgment Interest E. Damages for Emotional Distress F. Wrongful Death and/or Survival Action Damages G. Punitive Damages H. Diminution in Value of Damaged Vehicle I. Loss of Use of Motor Vehicle Evidentiary Issues A. Preventability Determination B. Traffic Citation from Accident C. Failure to Wear a Seat Belt D. Failure of Motorcyclist to Wear a Helmet 1

2 E. Evidence of Alcohol or Drug Intoxication F. Testimony of Investigating Police Officer G. Expert Testimony H. Collateral Source I. Recorded Statements J. Prior Convictions K. Driving History L. Fatigue M. Spoliation Settlement A. Offer of Judgment B. Liens C. Minor Settlement D. Negotiating Directly With Attorneys E. Confidentiality Agreements F. Releases G. Voidable Releases Transportation Law A. State DOT Regulatory Requirements B. State Speed Limits C. Overview of State CDL Requirements Insurance Issues A. State Minimum Limits of Financial Responsibility B. Uninsured Motorist Coverage C. No Fault Insurance D. Disclosure of Limits and Layers of Coverage E. Unfair Claims Practices F. Bad Faith Claims G. Coverage - Duty of Insured H. Fellow Employee Exclusions Endnotes 2

3 Overview of the State of West Virginia Court System A. Trial Courts There are 158 Magistrates in West Virginia. Magistrates issue search and arrest warrants, hear misdemeanor cases, conduct preliminary examinations in felony cases, and hear civil cases with $5,000 or less in dispute. Magistrates may also issue protective orders in cases involving domestic violence. Municipal courts are administered locally and are limited to cases involving ordinance violations. There are 45 family court judges who serve 27 family court circuits. Family court judges hear cases involving divorce; annulment; separate maintenance; paternity; grandparent visitation; issues involving allocation of parental responsibility; and family support proceedings, except those incidental to child abuse and neglect proceedings. Family court judges also hold final hearings in domestic violence civil proceedings. Family court judges, who were previously appointed by the governor, were elected in partisan elections for the first time in Their initial terms are for six years. Subsequent terms are for eight years. The Circuit Courts are West Virginia s only general jurisdiction trial courts. The Circuit Courts have jurisdiction over all civil actions at law over $2,500 and all civil cases in equity. West Virginia s 55 counties are divided into 31 circuits and have 70 circuit judges. Each county has a courthouse where a circuit judge presides. West Virginia s Rules of Civil Procedure and Trial Court Rules permit a judge of the Circuit Court to require the parties to mediate. 1 The parties have 15 days to object to an order directing a case to mediation, which the court should promptly consider. 2 Many trial judges require mediation and include a deadline in the trial court s scheduling order by which the parties are to mediate their dispute. The jury in a civil case shall consist of six persons, unless the court directs that the jury should consist of a greater number. 3 B. Appellate Courts The Supreme Court of Appeals is West Virginia s highest state court and the court of last resort. There are five Supreme Court justices who hear all appeals, including direct appeals from the Workers Compensation administrative agency. West Virginia has no intermediate appellate court. Until recent years, in most civil cases the parties had no right to appellate review of adverse decisions; review was granted by the Supreme Court of Appeals on petition for appeal. Revised rules of appellate procedure effective December 1, 2010, afford civil litigants the opportunity to file a notice of appeal from an appealable adverse order. After briefing, the court determines whether it will hear argument or dispose of the appeal on the basis of the written submissions only. The rules permit the court to issue non-precedential memorandum opinions; the opinions are published on the court s web site but will not appear in official reporters. 4 3

4 Parties also may seek review of certain types of orders by filing a petition for writ of prohibition in the Supreme Court of Appeals. 5 The writ of prohibition is an extraordinary remedy, and will be granted only upon the satisfaction of several conditions. 6 The court applies the following test to determine whether issuance of a writ of prohibition is appropriate: In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight. 7 Post Judgment Interest Rates By Order dated January 1, 2015, The Supreme Court of Appeals of West Virginia has set the interest rate at 7.00% for money judgments entered by the courts during the year The Supreme Court of Appeals is statutorily authorized to set the prevailing rate each year. 8 Bond Requirements West Virginia courts may require that an appellant post a bond in order for an appeal to take effect. 9 The court sets the amount of the bond. 10 If the appealing party fails to post the bond within the allotted time, the appeal will be dismissed. 11 The rational for requiring such a bond is to protect against the consequences of insolvency of the appealing party during the time the appeal is pending. Procedural A. Venue The West Virginia Legislature s 2003 amendment to Section of the West Virginia Code ( the venue statute ) was addressed by the Supreme Court of Appeals in Morris v. Crown Equip. Corp. 12 In this case, the court held that the venue statute was unconstitutional as applied, because it placed undue limitations on suits by nonresidents. In response to this decision, the West Virginia Legislature repealed part of Section and enacted a supplemental provision to the venue statute (Section a). 13 This amendment to the venue statute provides that a 4

5 plaintiff s choice of a forum is entitled to great deference, but this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in this state. 14 The amendment codifies existing common law venue principles, by enumerating eight factors for courts to consider when determining whether to grant a motion to stay or dismiss an action: (1) whether an alternate forum exists, (2) whether maintenance of the claim in West Virginia courts would work substantial injustice to the moving party, (3) whether an alternate forum can exercise jurisdiction over all properly-joined defendants, (4) the state in which the plaintiff(s) resides; (5) the state where the cause of action occurred, (6) whether, in balancing the private interests of the parties with the public interest of the state, the action should be brought in an alternate forum, (7) whether not granting the stay or dismissal would result in unreasonable duplication or proliferation of litigation, and (8) whether the alternate forum provides a remedy. 15 B. Statute of Limitations Bodily Injury, Property Damage Claims An action for negligent damage to person or property must be brought within two years of the date the injury is discovered or reasonably should have been discovered. 16 In West Virginia, the courts are to instruct the jury to consider the evidence, and if they believe the plaintiff is entitled to recovery, then they are to award the plaintiff damages that fairly and justly compensate for the injuries sustained, factoring in present and future extent of the physical and mental pain suffered as well as the extent to which any disfiguration was caused. 17 Wrongful Death An action for wrongful death must be filed within two years of the decedent s death, pursuant to W.Va. Code (b). 18 Bad Faith An action on a bad faith claim must be brought within one year of the date of injury, pursuant to W.Va. Code (c). 19 Breach of Contract/UM/UIM A breach of contract action must be brought within ten years of the date on which the act breaching the contract becomes known. 20 Uninsured ( UM ) and Underinsured ( UIM ) claims are founded on contract; the ten-year statute of limitations applies to suits by an insured against a UM or UIM insurer. 21 If the UM operator is unknown, the injured claimant must sue the unknown owner/operator and serve his own UM insurer with a copy of the complaint. The twoyear statute of limitations applicable to personal injury claims applies to such a John Doe suit. 22 5

6 C. Time for Filing An Answer Defendant shall serve an answer within 20 days after the service of the summons, unless before the expiration of that period defendant files and serves a notice that the defendant has a bona fide defense, and then an answer shall be served within 30 days after service of the summons. If the summons is served upon or accepted on behalf of a defendant through or by an agent or attorney in fact, or when personal service is made outside West Virginia, an answer shall be served within 30 days. 23 D. Dismissal Re-Filing of Suit West Virginia Rule of Civil Procedure 41 is similar Rule 41 of the Federal Rules of Civil Procedure. The rule provides for voluntary dismissal without the use of a court order: Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the State, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of this or any other state an action based on or including the same claim. Rule 41(b) addresses involuntary dismissals: For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits. Liability A. Negligence To establish a cause of action for negligence in West Virginia, a plaintiff must establish that the defendant owed a duty of care to the plaintiff, that the defendant breached that duty of care, and that such breach was the proximate cause of the plaintiff's injuries. 24 Evidence that a defendant violated a statute or regulation does not establish negligence per se in West Virginia. Rather, a violation of a statute or regulation creates a prima facie presumption of negligence, which may be rebutted by evidence tending to show that the defendant, in 6

7 violating the statute or regulation, did what might reasonably have been expected of a person of ordinary prudence, acting under similar circumstances, and who desired to comply with the law. 25 West Virginia has abolished the common law distinction between a landowner s duty to invitees and licensees, while retaining the distinction and exceptions for trespassers. 26 There is a five point checklist of factors that the trier of fact must consider when determining whether the defendant has met its burden of reasonable care under the circumstances to all non-trespassing entrants. These five factors are as follows: (1) the foreseeability that an injury might occur; (2) the severity of the injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; (5) the magnitude of the burden placed upon the defendant to guard against the injury. In November of 2013, the Supreme Court of Appeals of West Virginia abolished the open and obvious doctrine in premises liability negligence actions. 27 The decision was widely criticized, and Justice Loughry s dissenting opinion even noted [i]t is decisions like this that have given this state the unfortunate reputation of being a judicial hellhole. 28 Senate Bill 13 which was passed February 18, 2015, and went into effect the same day restores the open and obvious doctrine, superseding the Hersh decision. The new legislation provides: Under the open and obvious doctrine, a possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers. 29 The Mallet decision kept in place the common law rule for the duty owed to a trespasser. 30 The Huffman decision set forth the following four factors to determine a landowner s duty to a trespasser: (1) the possessor must know or, from facts within his knowledge should know, that trespassers constantly intrude in the area where the dangerous condition is located; (2) the possessor must be aware that the condition is likely to cause serious bodily injury or death to such trespassers; (3) the condition must be such that the possessor has reason to believe trespassers will not discover it; and (4) in that event, the possessor must have failed to exercise reasonable care to adequately warn the trespassers of the condition. Senate Bill 3 which was passed January 29, 2015, and went into effect on April 29, 2015 adds that a possessor of real property owes no duty of care to a trespasser except the common law rights of action, such as causing willful or wanton injury to the trespasser. 31 Although the Attractive Nuisance Doctrine is not recognized in West Virginia, the Supreme Court of Appeals has adopted a similar rule that where a dangerous instrumentality or condition exists at a place frequented by children who suffer injury, the parties responsible for such dangerous condition may be held liable for such injury if they knew, or should have known of the dangerous condition and that children frequented the dangerous premises either for pleasure or out of curiosity. 32 7

8 B. Negligence Defenses West Virginia defendants have available to them the defenses of superseding cause, comparative negligence, assumption of the risk, and in limited circumstances sudden emergency. 33 C. Gross Negligence, Recklessness, Willful and Wanton Conduct The court has commented in State v. Peak, 185 W.Va. 548, 552, n. 4, 408 S.E.2d 300, 304 n. 4 (1991) that "[t]he phrase 'reckless disregard for the safety of others'... is synonymous with gross negligence. The standard for gross negligence while operating a motor vehicle was discussed by the Virginia Supreme Court in McDowell v. Dye, 69 S.E. 2d 459 (Va. 1952) and is followed by the West Virginia courts. The relevant language is as follows: Whether the conduct of a person operating an automobile amounts to gross negligence... depends upon the facts and circumstances surrounding the operation. The element of time incident to the accident must be considered with the surrounding circumstances in determining whether the driver's conduct constitutes gross negligence. One degree of care sufficient under certain circumstances may amount to gross negligence under others. If reasonable men may differ upon the question then a jury problem is presented. 34 The law of West Virginia recognizes a distinction between negligence, including gross negligence, and willful, wanton, and reckless misconduct. The latter type of conduct requires a subjective realization of the risk of bodily injury created by the activity and does not constitute any form of negligence. As the court stated in Stone v. Rudolph, 127 W.Va. 335, 346, 32 S.E.2d 742, 748 (1944), citing 38 Am Jur. 692: Willfulness or wantonness imports premeditation or knowledge and consciousness that injury is likely to result from the act done or from the omission to act. Willful, malicious, or intentional misconduct is not, properly speaking, within the meaning of the term 'negligence'. Negligence and willfulness are mutually exclusive terms which imply radically different mental states. 'Negligence' conveys the idea of inadvertence as distinguished from premeditation or formed intention. An act into which knowledge of danger and willfulness enter is not negligence of any degree, but is willful misconduct. 35 D. Negligent Hiring and Retention A claim for negligent hiring would derive from Section 411 of the Restatement (Second) of Torts, which provides: An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor to do work which will involve a risk of physical harm unless it is 8

9 skillfully and carefully done, or to perform any duty which the employer owes to third persons. 36 The Supreme Court of Appeals of West Virginia has held that an employer has a duty to conduct a comprehensive inquiry into the credentials of an individual, even if that individual is an independent contractor. 37 The court has cited with approval other states' rules that an employer is negligent where it engages an unqualified or careless contractor or, when, although on notice of deficient performance, the employer fails to prevent the continuance of such negligence. 38 E. Negligent Entrustment The term negligent entrustment is used by courts and commentators to describe a theory of vicarious liability which recognizes that an actor may be negligent in permitting a third person to use an instrument under the actor's control with actual or implied knowledge that such third person is likely to use the instrument in such manner as to cause an unreasonable risk of harm to others. In Huggins v. Tri-County Bonding Co., 175 W.Va. 643, 649, 337 S.E.2d 12, 17 (1985) the court cited the Restatement (Second) of Torts: It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others. 39 The pivotal element of a negligent entrustment cause of action is the initial improper loaning of the vehicle improper in the sense that it is given to a person who is known to be likely to cause an unreasonable risk of harm to others. 40 F. Dram Shop West Virginia does not have a Dram Shop or social host liability statute, but West Virginia courts have recognized vendor liability based on negligence. The Supreme Court of Appeals in Bailey v. Black, 183 W.Va. 74, 394 S.E.2d 58 (1990) recognized a cause of action against licensed vendors under the theory that a violation of any applicable alcoholic beverage control statute constituted prima facie evidence of negligence. Under West Virginia law, a plaintiff must allege and prove that a licensed vendor sold alcoholic beverages to a person prohibited by statute. In the absence of statutory provisions, the common law of negligence applies. A social host will not be liable to a guest or a third party injured by a guest absent a finding of affirmative conduct on the part of the social host. Under the same circumstances, an employer will not be held liable absent affirmative conduct on the party of the employer, and absent sufficient control over the employee. Section of the West Virginia Code states that, 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[.] This negligence-based liability extends to third parties if there was a foreseeable risk of harm. Common statutory violations include the sale of liquor to minors and to visibly intoxicated patrons. Section (a)(3) provides: 9

10 It shall be unlawful... [f]or any licensee, his, her, its or their servants, agents or employees, to sell, furnish or give any nonintoxicating beer as defined in this article to any person who is less than twenty-one years of age[.] Section (a)(6) also states: It shall be unlawful for any licensee, or agent, employee or member thereof on such premises to... [p]ermit the consumption by, or serve to, on the licensed premises any nonintoxicating beer, wine or alcoholic liquors, covered by this article, to any person who is less than twenty-one years of age. Section (a)(4) adds: It shall be unlawful for any licensee, or agent, employee or member thereof on such premises to... [s]ell, give away or permit the sale of, gift to or the procurement of any nonintoxicating beer, wine or alcoholic liquors, for or to any person known to be deemed legally incompetent, or for or to any person who is physically incapacitated due to consumption of nonintoxicating beer, wine, or alcoholic liquor or the use of drugs. Nonintoxicating beer is statutorily defined in Section Licensee includes brewers, manufacturers, distributors, and retailers of alcoholic beverages. 42 G. Joint and Several Liability With respect to causes of action arising on or after May 25, 2015 the new Modified Comparative Fault standard applies. 43 Under this new standard, defendants are only responsible for their share of damages. A plaintiff is only barred from recovery if his fault is greater than the fault of all other persons. (The Supreme Court of Appeals recently rejected the wrongful conduct rule, holding that [a] plaintiff s immoral or wrongful conduct does not serve as a common law bar to his or her recovery for injuries or damages incurred as a result of the tortious conduct of another. Unless otherwise provided at law, a plaintiff s conduct must be assessed in accordance with our principles of comparative fault. ). 44 In making its determination, the trier of fact will consider fault of all persons, including nonparties. This new standard applies to all causes of action, but the one exception where joint and several liability is allowed is where defendants consciously conspire to commit a tortious act or omission. With respect to causes of action arising before May 25, 2015, former West Virginia Code Section imposes joint liability on defendants found to be more than 30% at fault. Therefore, if a defendant is found to be 30% or less at fault, he is only required to pay the percentage of the damages for which he is actually found to be liable. 45 If, under the former statute, a plaintiff is unable to collect the full amount from any defendant six months after the verdict is rendered, then, he is permitted to seek reallocation of the uncollectible amount among the other defendants according to their percentage of fault, up to each defendant s 10

11 percentage of fault multiplied by the uncollectible amount. However, reallocation cannot increase the liability of any defendant whose percentage of fault is (1) less than or equal to that of the plaintiff, or (2) less than ten percent. 46 This former version of Section took effect on July 8, 2005, and applied only to causes of action that accrued on or after July 1, Finally, the rules of joint and several liability were applicable 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. 47 H. Wrongful Death and/or Survival Actions A wrongful death action is a statutory creation which compensates the decedent's survivors for pecuniary losses sustained as a result of the decedent's death. The losses include the value of the services that the victim would have rendered to his or her family if he had lived. 48 A wrongful death action does not compensate the decedent's estate; rather, it compensates the survivors for damages which they may have sustained as a result of the decedent's death. 49 The survival action is statutory. 50 Decedent's personal estate may recover for the pain and suffering that the decedent suffered between the time of injury and the time of death, where the injury resulted in death and regardless of whether Decedent instituted an action for personal injury prior to his death. However, there must be evidence of conscious pain and suffering prior to death. Where death was instantaneous, or there is no evidence that the decedent consciously perceived pain and suffering, no damages for pain and suffering are allowed. 51 The decedent s personal estate may also recover for the decedent s loss of earning power from the date of injury until his or her death. 52 Recovery is also allowed for the likely earnings the decedent would have acquired during his or her life expectancy. 53 A claim for damages in a wrongful death action is called a derivative claim because the action arises out of the death of the decedent. When language within an insurance policy clearly limits recovery of derivative claims to the per person limit, the per occurrence limit does not apply even though the surviving spouse and children, including adopted children and step-children, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death, are entitled to share in the recovery in a wrongful death action pursuant to West Virginia s wrongful death statute. 54 On the other hand, if the insurance policy has language that includes damages from a wrongful death as a separate bodily injury, then each person recovering for the wrongful death is entitled to a separate per person limit. 55 I. Vicarious Liability West Virginia follows the universally recognized rule that an employer is liable to a third party for any injury to that third party s person or property which proximately results from the tortious conduct of an employee who is acting within the scope of his employment. 56 The negligent or tortious act may be imputed to the employer if the act of the employee was done in accordance with the expressed or implied authority of the employer. 11

12 An employee is acting within the course of his employment when the following factors exist: (1) the employee engages in an action; and (2) such action results from the conscious and specific direction of the employer, or the action was an ordinary and natural incident or attribute of the act. Therefore, a mere deviation or departure from the usual and ordinary course and activities of this employment, does not of itself, as a matter of law, relieve the employer of liability. Whether the departure or deviation of the employee is sufficient to relieve the employer of responsibility is a question of fact to be determined by a jury. "Scope of employment" is a relative term that requires the consideration of the surrounding circumstances, including the character of the employment, the nature of the wrongful deed, the time and place of its commission, and the purpose of the act. 57 An employer, in an attempt to avoid liability for the actions of one of its employees, may assert that the alleged employee was in fact an independent contractor at the time of the wrongful act. However, the employer then bears the burden of establishing that it neither controlled nor had the right to control the acts of the wrongdoer. 58 The general rule is that an employer who has contracted with a competent person to do work that is not in itself unlawful or intrinsically dangerous in character, and who exercises no supervision or control over the work contracted for, is not liable for the negligence of the independent contractor or his servants in the performance of the work. 59 The independent contractor defense, however, is riddled with exceptions, including the dangerous work exception. 60 A principal has a non-delegable duty to exercise reasonable care when performing an inherently dangerous activity, a duty that the principal cannot discharge by hiring an independent contractor to undertake the activity. 61 When an independent contractor carries out an inherently dangerous activity and is negligent in doing so, then the employer of that independent contractor may be held vicariously liable. 62 In West Virginia, the presence of a corporation's name, placard, or logo on a commercial vehicle is deemed evidence of the existence of an employer-employee relationship between the driver of the vehicle and the corporation, regardless of the provisions of an express contract between the parties, and regardless of the fact that the vehicle is owned by the driver. 63 J. Exclusivity of Workers Compensation Prior to January 1, 2006, workers compensation coverage was provided exclusively through the state-run Workers Compensation Commission. West Virginia eliminated the state fund and replaced it with a private insurance company, BrickStreet Mutual Insurance Company ( BrickStreet ). BrickStreet provided all coverage for workers compensation claims until July 1, 2008, when West Virginia opened the market for competition. West Virginia regulates benefit rates for injured workers through the West Virginia Insurance Commissioner. 64 These rates may change annually. Section of the West Virginia Code was amended in This statute established an exception to the exclusivity of the workers' compensation remedy where an injury is caused by the "deliberate intention" of the employer. 65 It provided an employee, widow, widower, child, or 12

13 dependent with a deliberate intention cause of action against the employer for injury or death of the employee. In the case of an employee's death, a personal representative who is not one of the statutorily named beneficiaries of a deliberate intent action has standing and may assert a deliberate intention claim against a decedent's employer on behalf of any person or persons identified in wrongful death statute, so long as the decedent could have maintained the action against the employer by satisfying the deliberate intention statutory criteria. 66 The deliberate intent statute requires that an employer have actual knowledge of the existence of the specific unsafe working condition prior to the injury. 67 In order to succeed in an action for deliberate intent, a plaintiff must prove all of the following elements: (i) (ii) (iii) (iv) (v) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death; That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition. * * * That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer. * * * That notwithstanding the existence of the facts set forth in subparagraphs (i) through (iii), inclusive, of this paragraph, the person or persons alleged to have actual knowledge under subparagraph (ii) nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twentythree as a direct and proximate result of the specific unsafe working condition. 68 Regarding the five factor test, House Bill 2011 which was passed on March 14, 2015, and became effective as of June 12, 2015 applies for all injuries occurring on or after July 1, House Bill 2011 tightens the requirements of Section by (1) strengthening the "actual knowledge" requirement, clarifying that it may not be proven by constructive knowledge or by proof that what an employee's immediate supervisor or management personnel should have known of that specific unsafe working condition and the risk it posed had they exercised reasonable care; (2) requiring more stringent proof that a specific unsafe working condition 13

14 violates commonly accepted or well-known safety standards or a state or federal safety statute, rule or regulation; and (3) specifying three new methods by which a plaintiff may establish that he has suffered a "serious, compensable injury. The new statute adds that in order to recover, an employee or his representative must have filed a claim for benefits under this chapter. 69 Deliberate intent claims commonly have been filed in all cases involving serious work related injuries. Other deliberate intent issues include: (a) (b) (c) Punitive damages are not recoverable against the employer in a deliberate intent action other than an action in which plaintiff claims and proves that the employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. 70 Comparative negligence may not be a defense for the deliberate intent defendant. Often, however, defendants other than the deliberate intent defendant will assert such a defense. Deliberate intent defendants receive a set-off to the extent of workers compensation benefits paid. 71 For information concerning co-employee suits and related coverage issues, see the Insurance Issues section below. Damages A. Statutory Caps on Damages By statute effective June 8, 2015, the West Virginia legislature enacted a statutory cap on the amount of punitive damages recoverable in civil actions. The new statute limits punitive damages to four times the amount of compensatory damages or $500,000, whichever is greater. 72 The statute does not specify whether it applies to claims that accrued before its effective date or to pending suits. For more information concerning punitive damages and the statutory cap, see the Punitive Damages section in part (G) below. West Virginia imposes a separate statutory cap on the amount of damages recoverable in a medical malpractice suit. This cap is located in the Medical Professional Liability Act ( MPLA ), which is located in West Virginia Code Section 55-7B-1 et seq. The MPLA was recently amended by Senate Bill 6, which became effective as of March 10, See Sections 55-7B-7a and 55-7B-9d for details. 14

15 B. Compensatory Damages for Bodily Injury Damages available in personal injury cases include: past and future pain and suffering, past and future medical expenses, lost wages, impairment of future earning capacity, loss of enjoyment of life, and emotional distress. 73 C. Collateral Source West Virginia does not allow collateral source offsets if the benefits were paid under a contractual arrangement that the plaintiff made independently of the tortfeasor. This includes first-party medical benefits, health insurance benefits, and underinsurance benefits. 74 In cases governed by West Virginia s MPLA, different rules may apply due to the enactment of recent legislation. See Code Section 55-7B-1 et seq. and Senate Bill 6 for more information. D. Pre-Judgment/Post judgment Interest [E]very judgment or decree for the payment of money, whether in an action sounding in tort, contract or otherwise, entered by any court of this state shall bear simple interest not compounding from the date thereof, whether it be so stated in the judgment or decree or not. 75 Pre-judgment and post-judgment interest is applied at the same rate, which for 2015 is 7.00%. However, for special or liquidated damages the pre-judgment interest rate is the rate which was in effect when the cause of action accrued. Special damages include lost wages and income, medical expenses, damages to tangible personal property and similar out-of-pocket expenditures, as determined by the court. If an obligation is based upon a written agreement, the obligation shall bear a prejudgment interest at the rate set forth in the written agreement until the date the judgment or decree is entered and, thereafter, the judgment interest rate shall be the same rate as provided for in this section. This statute as amended became effective January 2, E. Damages for Emotional Distress Damages for negligent infliction of emotional distress may be recovered where as a result of the defendant s negligence the following occurs: (1) The plaintiff suffers physical injury; (2) the plaintiff witnesses the critical injury or death of a person closely related to him or her; or (3) the plaintiff was actually exposed to a disease and therefore fears contracting a disease, which causes plaintiff to suffer with serious emotional distress. 77 In order to recover for negligent infliction of emotional distress... [a] plaintiff is required to prove... that his or her serious emotional distress was reasonably foreseeable, that the defendant's negligent conduct caused the victim to suffer critical injury or death, and that the plaintiff suffered serious emotional distress as a direct result of witnessing the victim's critical injury or death. In determining whether the serious emotional injury suffered by a plaintiff in a negligent 15

16 infliction of emotional distress action was reasonably foreseeable to the defendant, the following factors must be evaluated: (1) whether the plaintiff was closely related to the injury victim; (2) whether the plaintiff was located at the scene of the accident and is aware that it is causing injury to the victim; (3) whether the victim is critically injured or killed; and (4) whether the plaintiff suffers serious emotional distress. 78 When the harm reasonably could affect only the hurt feelings of the supersensitive plaintiff, however the "eggshell psyche" there is no entitlement to recovery. 79 Additionally, West Virginia allows for the recovery of damages for intentional inflection of emotional distress. Intentional infliction of emotional distress stems from extreme or outrageous conduct on the part of the tortfeasor. 80 This extreme conduct must further be intended to or have recklessly caused the victim to suffer emotional damage as a result of that conduct. 81 F. Wrongful Death and/or Survival Action Damages West Virginia s Wrongful Death statute provides that damages may be recovered for: (a) (b) (c) sorrow, mental anguish, solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; expenses incurred for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (d) reasonable funeral expenses. 82 Recovery may be shared by the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent. 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 intestacy. Although the statute does not specifically authorize punitive damages, the Supreme Court of Appeals of West Virginia has determined that punitive damages may be recovered in wrongful death actions. 83 Under the Wrongful Death statute, a jury s verdict may include damages for the decedent s conscious pain and suffering, endured between the time of injury and death, and regardless of whether the decedent instituted a personal injury action prior to death. If the decedent had no perceived pain and suffering, or if the death was instantaneous, a claim for pain and suffering is without merit

17 In any action to recover damages for personal injury or for 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. 85 G. Punitive Damages By statute effective June 8, 2015, the West Virginia legislature amended state law regarding punitive damages. 86 First, Senate Bill 421 creates a new standard of proof: [the plaintiff must establish] by clear and convincing evidence that the damages suffered were the result of the conduct that was carried out by the defendant with actual malice toward the plaintiff or a conscious, reckless and outrageous indifference to the health, safety and welfare of others. 87 Second, this new statute also allows for bifurcation. The first phase would determine liability. If the jury rules against the defendant, then the court will determine whether sufficient evidence exists to proceed with a consideration of punitive damages. If the court finds that sufficient evidence exists, then the same jury shall determine if a defendant is liable for punitive damages. 88 Third, the bill sets a cap on punitive damages at four times the amount of compensatory damages or $500,000, whichever is greater. 89 The statute does not specify whether it applies to claims that accrued before its effective date or pending suits. For information concerning punitive damages and the statutory cap, see Statutory Caps on Damages from Section (A) above. With respect to cases not covered by the new legislation, punitive damages may generally be awarded in cases of intentional torts or gross, reckless or wanton negligence. 90 There must be a reasonable relationship between such damages and the harm that was likely to occur from defendant's conduct, as well as the harm that actually has occurred. 91 Relevant factors include: (1) reprehensibility of the defendant's conduct; (2) whether the defendant profited from the wrongful conduct; (3) whether imposing such damages would serve as a deterrence; and (4) the reasonable relationship between punitive damages and compensatory damages with regard to the financial position of the defendant. 92 As a matter of fundamental fairness, the punitive damages imposed should bear a reasonable relationship to compensatory damages imposed. Furthermore, the cost of litigation, alone, to the plaintiff is a factor that may justify punitive damages. 93 Any 17

18 award of punitive damages must also comply with the United States Supreme Court's holding in B.M.W. of North America v. Gore, which held that grossly excessive punitive damage awards violate due process and are therefore unconstitutional. 94 Moreover, the United States Supreme Court has held that evidence of defendant s conduct, relied upon by the plaintiff in arguing for punitive damages, must have a specific nexus to the actual harm suffered by the plaintiff. 95 A punitive damage award based in part on a jury s desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process. 96 Punitive damages imposed for gross, reckless, or wanton negligence are insurable. Absent an express exclusion for punitive damages, a policy with language to the effect that the insurer agrees to pay "all sums which the insured shall be legally obligated to pay" covers such punitive damages. 97 This holds true for UM/UIM insurance as well as liability insurance. 98 H. Diminution in Value of Damaged Vehicle The measure of recovery for negligent damage to property that has not been completely destroyed, where the damage is of a permanent nature, is the diminution in the market value of the property by reason of the injury. 99 Thus, if the owner of a motor of vehicle which is damaged and subsequently repaired can show that there has been a diminution in value based upon structural damage after the repair, then recovery is permitted for that diminution in addition to the cost of repair. 100 However, the total recovery shall not exceed the market value of the vehicle before it was damaged. Furthermore, West Virginia courts require that plaintiffs provide actual proof that structural value has been diminished following the repair, and plaintiffs must prove that the motor vehicle had significant value before the accident. 101 I. Loss of Use of Motor Vehicle Under West Virginia law, plaintiffs may recover damages for loss of use. Furthermore, plaintiffs may recover for the loss of use of the property regardless of whether that property is repairable. If a motor vehicle is repairable, then the plaintiff may recover for the expenses he has incurred as a result of the loss of use while the motor vehicle was being repaired. If the motor vehicle cannot be repaired, then the plaintiff may recover for the expenses he has incurred as a result of the loss of use while the property was being replaced. 102 Evidentiary Issues A. Preventability Determination West Virginia does not have any case law regarding the admissibility of post-accident preventability determinations. However, based upon West Virginia s Rules of Evidence and the purpose for which such evaluations are conducted, arguably evidence of such determinations may be excluded as evidence of subsequent remedial measures. 103 Furthermore, arguably the 18

19 admission of such an evaluation would cause unfair prejudice and should, therefore, be excluded. 104 B. Traffic Citation from Accident The West Virginia Rules of Evidence substantially reflect the Federal Rules of Evidence, particularly on the principles of relevance and hearsay. The Supreme Court of Appeals of West Virginia has said that ordinarily evidence regarding the arrest or conviction of a defendant is inadmissible in a subsequent civil action for damages arising out of the act for which the defendant was arrested and or subsequently convicted. A party s conviction for such an offense, however, if he has pleaded guilty, may be admissible because the guilty plea constitutes an admission against interest, an exception to the hearsay rule. 105 A conviction of a traffic offense based on a guilty plea has been held admissible in a subsequent civil suit arising out of the same incident. 106 C. Failure to Wear a Seat Belt West Virginia does not have a seatbelt defense, but evidence regarding the failure to use a seatbelt may be introduced in very limited circumstances. Section 17C of the West Virginia Code provides that no one may operate a passenger vehicle on a public road unless that person, the front seat passengers, and the back seat passengers who are under 18, are restrained by seatbelts. A passenger vehicle is a motor vehicle designed for transporting ten passengers or less and including the driver. However, the term does not include motorcycles or trailers. 107 A violation of this statute may not be introduced as evidence of negligence, comparative negligence, or failure to mitigate. However, the statute does provide that upon defendant s motion, the court may conduct an in camera hearing to determine whether the plaintiff s failure to wear a seat belt was the proximate cause of the plaintiff s injury. If the court so finds, it will, by special interrogatory to the jury, determine whether: (1) the injured party failed to wear a safety belt and (2) this constituted a failure to mitigate damages. The trier of fact may then reduce recovery for medical expenses by an amount not to exceed five percent. The plaintiff may elect to stipulate to a reduction of five percent for not using a seat belt, and if he does, the court will not instruct the jury on this issue. 108 The statute applies in crashworthiness and enhanced injury cases as well. 109 Accidents occurring on private roadways, however, are not subject to the statute; therefore, in these cases, the option of introducing evidence of plaintiff s failure to wear a seatbelt does not exist, even in the limited circumstances referenced above. 110 D. Failure of Motorcyclist to Wear a Helmet The Department of Motor Vehicles regulations require that motorcycle helmets be worn by both drivers and passengers at all times while the motorcycle is in motion, and be worn with the chin strap properly fastened and in contact with the chin and jaw. 111 The regulations do not address any effect the non-use of a helmet may have on recovery for personal injury or death in West Virginia. 19

20 E. Evidence of Alcohol or Drug Intoxication Operating a vehicle with a blood alcohol level of.08 or more is punishable by fine or imprisonment in West Virginia. 112 Drivers of commercial motor vehicles are prohibited from driving with an alcohol concentration in... blood, breath or urine of.04 or more. 113 The West Virginia Supreme Court has actually taken judicial notice of the fact that the ingestion of alcohol has an adverse effect on one's ability to drive. Furthermore, the causal link between a driver s intoxication and a resulting accident does not need to be supported by the testimony of an expert witness; rather such a link may be inferred by the jury once the driver s intoxication has been proven. 114 F. Testimony of Investigating Police Officer Police officers are permitted to testify as expert witnesses on matters for which they possess specialized knowledge. The decision to certify a witness as an expert must be made by the trial judge based on an evaluation of that witness qualifications. 115 A police officer can be certified and testify as an expert with regard to matters on which that officer has extensive practical experience, specialized knowledge or training. 116 As an expert witness, a police officer can give fact based opinion testimony but cannot testify to a legal conclusion. 117 In order for a police officer to testify on matters outside of his own observations, that officer must be qualified as and testifying as an expert with regard to that opinion. 118 G. Expert Testimony West Virginia s Rules of Evidence provide that experts may testify at trial if scientific, technical, or other specialized knowledge will assist the judge or jury in understanding the evidence or determining a fact in issue. 119 An expert is a witness who is qualified as an expert by knowledge, skill, experience, training, or education. 120 An expert s opinion is admissible if the methodology used by the expert is scientifically or technically valid and properly applied. 121 Rule 702 s description of who can qualify as an expert has been liberally construed to allow any party who possesses some combination of knowledge, skill, experience, training, or education to testify as an expert. 122 Law enforcement officers have been found to possess the level of expertise required. 123 West Virginia has adopted the United States Supreme Court s decision in Daubert v. Merrell Dow Pharmaceuticals with regard to the admissibility of expert testimony. 124 Under Daubert, a trial judge is required to make a preliminary assessment of whether the testimony is based on valid reasoning or methodology and if these reasons or methods can be applied to matter at hand. 125 The court is to make this assessment based upon the ability of method to be tested, if it has been peer reviewed and published and its potential rate of error. 126 The primary goal of this assessment is not to determine if the science that underlies the method if correct but rather to ensure that it is valid enough to be reliable. 127 This rational additional applies to non-scientific 20

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