Tort Reform in West Virginia Leads to New Standards for Allocation of Fault

In an historic move that will have long-lasting repercussions for both the legal and business communities of West Virginia, Governor Earl Ray Tomblin signed House Bill 2002 into law changing the standard for the computation of allocation of fault. While only one of a few tort reform changes made by the now Republican-controlled West Virginia legislature, HB 2002 is by far the most significant. West Virginia, which once followed the joint and several liability standard, will now use the modified comparative fault standard to determine allocation of fault in civil cases among multiple defendants.

This new standard applies to actions based in tort or any other legal theory seeking damages for personal injury, property damage, or wrongful death arising on or after June 2015. If you are facing such a suit, or think that these changes may apply to a potential suit, the defense attorneys at Hendrickson & Long, PLLC may able to advise you on how to move forward.

What is the New Modified Comparative Fault Standard?

Before HB 2002, parties at fault in civil trials were held jointly liable, allowing damages to be transferred from one defendant to another if the first was unable to pay. If one defendant was insolvent, that portion of the damages would be transferred to the remaining defendants. The text of the new code in sections 55-7-13 (a)-(d) on Comparative Fault Standard Established provides for the following:

  • The allocation of damages applicable to each party are to be in direct proportion to that entity’s percentage of fault;

  • Liability for all compensatory damages shall be only several, and not joint (applicable in cases of conscious conspiracy between two or more defendants);

  • Nonparties are to be included in the consideration of allocation of fault for the harm; and

  • The burden of proof for establishing comparative fault is on the party seeking to do so.

What is the Effect of These Changes?

Currently, if a party can’t pay its share of damages and another party was deemed more than 30 percent responsible, the second entity may be required to cover all remaining damages. The changes in HB 20002 ensure that defendants are only responsible for their share of damages. Those behind the bill, such as Delegate Paul Espinosa (R-Jefferson) called the change a “common sense legal reform” to restore “basic fairness to West Virginia’s legal system.”

The changes were lauded by groups such as the West Virginia Citizens Against Lawsuit Abuse, though others like the West Virginia Association for Justice voiced concern that the changes will make litigation more complex due to the courts having to determine relative allocation of fault for multiple defendants. Additionally, if defendants are unable to pay the full amount of their damages, plaintiffs may be left without recovery. While certainly under contentious debate, HB 2002 was seen as a strong move to bring West Virginia into the more modern trend of damage allocation and position itself as a more pro-business legal environment.

If you are facing a case with damages arising from personal injury, property damage, or wrongful death arising on or after June 2015, these changes may have a significant effect on your potential defense. Contact the experienced defense attorneys at Hendrickson & Long, PLLC in Charleston, West Virginia to ensure that you have the most up-to-date information on this rapidly developing area of law and that you have the strongest legal defense for your suit.