Liability

Statutes of Limitation

Bodily Injury

Two (2) year Statute of Limitations. W. Va. Code § 55-2-12(b).

Property Damage

Two (2) year Statute of Limitations. W. Va. Code § 55-2-12(a).

UM/UIM Claims

A direct action against an uninsured or underinsured motorist carrier sounds in contract, and is governed by the statutes of limitations applicable to contract actions. Plumley v. May, 189 W. Va. 734, 434 S.E.2d 406 (1993).

Breach of Contract

1. Ten (10) year Statute of Limitations for a bond or any other contract in writing under seal. W. Va. Code § 55-2-6.
2. Ten (10) year Statute of Limitations for contract in writing signed by the party to be charged, but not under seal. W. Va. Code § 55-2-6.
3. Five (5) year Statute of Limitations for any other contract (including oral), express or implied. W. Va. Code § 55-2-6.
4. Four (4) year Statute of Limitations for any contract for sale. W. Va. Code § 46-2-725.

Minor Statute of Limitations

Two (2) years past eighteenth birthday for personal injury. W. Va. Code § 55-2-15(b).

Negligent Entrustment, Hiring, Retention and Supervision

Negligent Entrustment

• West Virginia does permit a cause of action for negligent entrustment for permitting 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. Huggins v. Tri-County Bonding Co., 175 W. Va. 643, 337 S.E.2d 12 (1985).
• The loaning of the vehicle must be “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. Id.

Negligent Hiring & Negligent Retention

• The West Virginia Supreme Court of Appeals 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. Thompson v. McGinnis, 195 W. Va. 465, 465 S.E.2d 922 (1995).
• The Court has also 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. Id.

Negligent Supervision

West Virginia does recognize the tort of negligent supervision, although very few cases discuss its elements. In Taylor v. Cabell Huntington Hosp., Inc., 208 W. Va. 128, the Court simply stated a negligent supervision claim must rest upon a showing that the employer failed to properly supervise the employee and, as a result, the employee commits a negligent act which proximately caused the plaintiff’s injury.

Negligent Training

While no case expressly approves a cause of action for negligent training, likewise, no case expressly disavows it.

Course and Scope of Employment

Standard of Review

Whether an employee acted within the scope of his employment is usually a question of fact determined by a jury. Levine v. Peoples Broadcasting Corp., 149 W. Va. 256, 140 S.E.2d 438 (1965). Consideration must be given to 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. Courtless v. Jolliffe, 203 W. Va. 258, 262, 507 S.E.2d 136, 140 (1998).

Legal Rule

An employee is acting within the course and scope of his employment when he is engaged in doing, for his employer, either the act consciously and specifically directed or any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act or a natural, direct and logical result of it. If in doing such an act the employee acts negligently, that is negligence within the course of the employment. Courtless v. Jolliffe, 203 W. Va. 258, 262, 507 S.E.2d 136, 140 (1998).

Comparative or Contributory Negligence

West Virginia recognizes modified comparative negligence, allowing a plaintiff to recover damages in proportion to the amount of fault they hold, so long as they are less than 50% at fault for the accident. Tug Valley Pharm. V. All Plaintiffs Below in Mingo Cnty., 235 W. Va. 283, 773 S.E.2d 627 (2015).

The Sudden Emergency Defense

West Virginia recognizes the sudden emergency defense, although the jury instruction is to be rarely given, in instances of truly unanticipated emergencies which leave a party little or no time for reflection and deliberation, and not in cases involving everyday traffic accidents arising from sudden situations which reasonably prudent motorists should expect. Syl. pt. 5, Moran v. Atha Trucking, 208 W. Va. 379, 540 S.E.2d 903 (1997).

Contribution or Implied Indemnity from Third Parties

Contribution

• West Virginia recognizes modified comparative fault, and each defendant is responsible only for damages in proportion to their percentage of fault. W. Va. Code § 55-7-13c(a).
• Once comparative fault is recognized, recovery can be had by one joint tortfeasor against another regardless of their respective degree of fault so long as the one has paid more than his share to the plaintiff. Syl. pt. 6, Modular Bldg. Consultants of W. Va., Inc. v. Poerio, Inc., 235 W. Va. 474 (2015).
• A party who has made a good faith settlement with the plaintiff prior to a judicial determination of liability is relieved from any liability for contribution. Syl. pt. 7, Modular Bldg. Consultants of W. Va., Inc. v. Poerio, Inc., 235 W. Va. 474 (2015).

Implied Indemnity

West Virginia recognizes the principle of implied indemnity. The person claiming implied indemnity must be without fault in regard to the incident that created the plaintiff’s injuries, as implied indemnity rests on principles of restitution which permit recovery against the indemnitor for all damages that the indemnitee has been required to pay the injured party. Sydenstricker v. Unipunch Prods., 169 W. Va. 440, 446, 288 S.E.2d 511, 515 (1982).

Exclusivity of Workers Compensation

West Virginia allows an exception to the exclusivity of the workers’ compensation remedy where an injury is caused by the “deliberate intention” of the employer. W. Va. Code § 23-4-2.

Seat Belt and Helmet Use

• Evidence of a plaintiff’s failure to wear a seat belt is not admissible to assess plaintiff’s percentage of fault or to show plaintiff’s failure to mitigate damages. Syl. Pt. 2, Miller v. Jeffrey, 213 W Va. 41, 576 S.E.2d 520 (2002).
• A jury instruction regarding West Virginia’s requirement to wear a helmet while riding a motorcycle pursuant to W. Va. Code §§ 17C-15-44 and 17B-2-1 is permissible. Brooks v. Napier, 2011 W. Va. LEXIS 495 (2011).

Spoliation

• West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence. Syl. pt. 5, Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003).
• West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action. Syl. pt. 2, Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003).
• Before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered:
• the party's degree of control, ownership, possession or authority over the destroyed evidence;
• the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial;
• the reasonableness of anticipating that the evidence would be needed for litigation; and
• if the party controlled, owned, possessed or had authority over the evidence, the party's degree of fault in causing the destruction of the evidence. Syl. pt. 3, Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003)

Damages

Caps

West Virginia does not have any cap on compensatory damages, except in medical malpractice claims. W. Va. Code § 55-7B-8 (the maximum amount recoverable for noneconomic loss is $250,000, or $500,000 if the medical malpractice resulted in certain catastrophic damages).

Joint and Several Liability

W. Va. law changed in 2015, abolishing joint and several liability and adopting comparative fault. W. Va. Code § 55-7-13a-d.

• Liability of each defendant for compensatory damages shall several only, and not joint. Each defendant shall be liable only for that amount of compensatory damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against each defendant for his or her share of that amount. W. Va. Code § 55-7-13c(a).
• Notwithstanding, if a plaintiff through good faith efforts is unable to collect from a liable defendant, the plaintiff may, not later than one year after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later, more for reallocation of any uncollectible amount among the other parties found to be liable. W. Va. Code § 55-7-13c(d).

Standard of Proof Required for Compensatory Damages

Under West Virginia law, damages recoverable must be provable tot a “reasonable degree of certainty.”Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (2004).

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, including first-party medical benefits, health insurance benefits, and UIM benefits. Johnson by Johnson v. Gen. Motors Corp., 190 W. Va. 236, 438 S.E.2d 28 (1993).

Hedonic Damages

The loss of enjoyment of life is an element of a permanent injury award. Just as a jury may consider the nature, effect and severity of pain when fixing damages for personal injury, or may consider mental anguish caused by scars and disfigurement, it may consider loss of enjoyment of life. Flannery v. United States, 171 W. Va. 27, 297 S.E.2d 433 (1982).

Life Care Plans

Life care plans are admissible in West Virginia, and are subject to all challenges available to other expert opinions. Lewis v. W. Va. Dep’t of Health & Human Res. (In re E.B.), 229 W. Va. 435, 729 S.E.2d 270 (2012).

Wrongful Death Standing and Damages

Standing

• Any action for wrongful death shall be brought by and in the name of the personal representative of the deceased person. If the personal representative was appointed outside of West Virginia, they shall post a $100 bond with the Complaint. W. Va. Code § 55-7-6(a).
• Any wrongful death action must be brought within two years after the death of the injured person. W. Va. Code § 55-7-8a.

Damages

Pursuant to W. Va. Code § 55-7-6(c), a verdict in a wrongful death case may include damages for the following

• Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
• Compensation for reasonably expected loss of:

• Income of the decedent; and
• Services, protection, care and assistance provided by the decedent;
• Expenses for the care, treatment, and hospitalization of the decedent incident to the injury resulting in death; and
• Reasonable funeral expenses.

Punitive Damages

Recoverable? If so, standard for it?

An award of punitive damages may only occur if a plaintiff establishes 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. W. Va. Code § 55-7-29(a).

Statutory Cap on Punitive Damages

The amount of punitive damages may not exceed the greater of four times the amount of compensatory damages or $500,000, whichever is greater. W. Va. Code § 55-7-29(c).

Are Punitive Damages Insurable?

• The public policy of West Virginia does not preclude insurance coverage for punitive damages arising from gross, reckless, or wanton negligence. Hensley v. Erie Ins. Co., 168 W. Va. 172, 283 S.E.2d 227 (1981).
• Where the liability policy of an insurance company provides that it will pay all sums which the insured becomes legally obligated to bay as damages because of bodily injury, and the policy excludes damages caused intentionally by or at the direction of the insured, the policy is deemed to cover punitive damages arising from bodily injury from gross, reckless, or wanton negligence of the insured. Id.

Offers of Judgment

West Virginia does have offers of judgment. Rule 68 of the W. Va. Rules of Civil Procedure.

• Only a defendant may make an offer of judgment, any time more than 10 days before trial.
• If the offer is not accepted and the jury’s verdict does not exceed the amount of the offer, the plaintiff must pay the costs incurred after the making of the offer.

Biomechanics

Biomechanical experts are qualified to render trial opinions in West Virginia. Their opinions and qualifications are subject to challenge like all other expert opinions. State ex rel. Jones v. Recht, 221 W. Va. 380, 655 S.E.2d 126 (2007).

Pre-suit disclosure of policy limits

An insurer must provide details of its policy, including policy limits, within 30 days of receipt of a written request from a claimant’s attorney. W. Va. Code § 33-6F-2.

May claimant recover general damages if they do not have their own auto-insurance? (“No pay to play”)

Yes. In West Virginia, a claimant may recover general damages even if they do not have auto insurance.