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2010 Edition
2013 Edition Vol. 2
2
A Guide to General
West Virginia
Litigation Principles
I. West Virginia Tort Law …………………………………………………………………………………………………… ...
3
*This handbook is not intended to be legal advice. You should consult with an
attorney before taking any action that cou...
4
5
6
About Our Firm
Bailey & Wyant, PLLC was formed in 2000. Since its
inception, the firm has grown from only a handful of
a...
7
I. WEST VIRGINIA TORT LAW
A. The Basic Elements
West Virginia employs a traditional English common-law tort system, with...
8
for any part of them. We do recognize that the
present rule that prohibits recovery to the
plaintiff if he is at fault i...
9
II. PROPERTY DAMAGE CLAIMS
A. Personal Property
Generally, the proper measure of damages for loss or destruction of pers...
10
The question of whether an insured has “substantially prevailed” against his or her
insurance company on a property dam...
11
3. Any and all physical pain the plaintiff, with reasonable certainty, shall
suffer in the future, and the probable dur...
12
Loss of the enjoyment of life, or of the ability to enjoy life, refers to how the injury has
affected the plaintiff’s a...
13
D. Wrongful Death Damages
In awarding damages for wrongful death, it is the jury’s duty to award, pursuant to West
Virg...
14
3. Whether defendant profited from' his wrongful conduct, and if you
find defendant did profit from his conduct you may...
15
(1) Punitive damages should bear a reasonable relationship to the harm that
is likely to occur from the defendant's con...
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TXO Production Corp. v. Alliance Resources Corp., 419 S.E.2d 870 (W.Va. 1992)
In this case, the Supreme Court of Appeal...
17
Perrine, et al. v. E.I. du Pont de Nemours and Co., et al., No. 34333, 34334,
34335 (W.Va. 2010)
This environmental cla...
18
the political subdivisions of this state were unable to procure adequate liability insurance
coverage at a reasonable c...
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 Civil disobedience or the method of providing police, law enforcement or
fire protection.
 Snow or ice conditions ...
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Hamill v. Koontz, 134 W.Va. 439, 443 S.E.2d 879, 882 (1950); see also Hesse v. State
Soil Conservation Committee, 153 W...
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(1) An assumption by the state governmental
entity, through promises or actions, of an
affirmative duty to act on behal...
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Under this rule, if one allegation of the complaint would be covered under the applicable
terms of the insurance policy...
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V. Qualified Immunity
The common law immunity of the State in suits brought under the authority of W. Va.
Code § 29-12-...
24
established statutory or constitutional rights of which a reasonable person would have
known.” Id. at 362, 424 S.E.2d a...
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There are two types of deliberate intent claims. The first type is very uncommon and is
brought forth pursuant to West ...
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Common items used to establish unsafe working conditions include:
 lock out/tag out failures (repairing vehicles, rep...
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 There is no consideration of contributory negligence on the part of
the claimant, except when the employer has proof...
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 Employers are entitled to an offset for whatever sums have been
paid to a claimant under workers' compensation benef...
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Addair v. Litwar Processing Co., 2012 W. Va. LEXIS 12 (W.Va. 2012)
In this memorandum decision, nine petitioners appeal...
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The exceptions to the new joint and several liability rule apply to those defendants who
are determined by a jury to ha...
31
established to prevent the defendant from taking advantage of payments received by the
plaintiff as a result of his own...
32
There is a difference in the West Virginia and Federal Rules of Civil Procedure for offers of
judgment. In state court,...
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC
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A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC

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Important legal topics addressed include: West Virginia Tort Law; Porperty Damage Claims; Damages; Governmental Tort Claims & Insurance Reform Act; Qualified Immunity; Deliberate Intent; Joint & Several Liability; Collateral Sources; Procedural Strategies; Uninsured/Underinsured Motorist; Unfair Trade Practices; Handling Indemity Issues; Employment law for Public Entities and many many others.

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Transcript of "A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLC"

  1. 1. 2010 Edition 2013 Edition Vol. 2
  2. 2. 2 A Guide to General West Virginia Litigation Principles I. West Virginia Tort Law …………………………………………………………………………………………………… 7 A. Basic Elements ……………………………………………………………………………………… 7 B. Comparative Negligence ……………………………………………………………………………… 7 C. Agency ………………………………………………………………………………………………………… 8 D. Independent Contractor Defense ……………………………………………………………… 8 II. Property Damage Claims …………………………………………………………………………………………… 9 A. Personal Property………………………………………………………………………………………………… 9 B. Realty…………………………………………………………………………………………………………………… 9 C. Adjusting Property Damage Claims ……………………………………………………………………9 III. Damages …………………………………………………………………………………………………………………… 10 A. Overview of Damages…………………………………………………………………………………………10 B. Non-Economic Damages…………………………………………………………………………………… 11 C. Future Economic Damages……………………………………………………………………………… 12 D. Wrongful Death Damages………………………………………………………………………………… 13 E. Punitive Damages……………………………………………………………………………………………… 13 F. Fee Shifting Statutes………………………………………………………………………………………… 17 IV. Governmental Tort Claims & Insurance Reform Act…………………………………………………… 17 A. Immunities………………………………………………………………………………………………………… 18 B. Special Duty Doctrine…………………………………………………………………………………………20 C. Insurance…………………………………………………………………………………………………………… 21 D. Judgments………………………………………………………………………………………………………… 21 E. Defense of Employees……………………………………………………………………………………… 21 F. Indemnification of Employees……………………………………………………………………………22 G. Procedure……………………………………………………………………………………………………………22 V. Qualified Immunity………………………………………………………………………………………………………… 23 VI. Deliberate Intent…………………………………………………………………………………………………………… 24 VII. Joint & Several Liability……………………………………………………………………………………………………29 VIII. Collateral Sources……………………………………………………………………………………………………………30 TABLE OF CONTENTS
  3. 3. 3 *This handbook is not intended to be legal advice. You should consult with an attorney before taking any action that could result in legal liability. IX. Procedural Strategies…………………………………………………………………………………………………… 31 A. Offers of Judgment…………………………………………………………………………………………… 31 B. Third Party Practice………………………………………………………………………………………… 32 X. Uninsured/Underinsured Motorist………………………………………………………………………………… 32 XI. Unfair Trade Practices…………………………………………………………………………………………………… 34 A. Statutory Law…………………………………………………………………………………………………… 34 B. Regulatory Law……………………………………………………………………………………………………37 XII. Insurance Related Case Law………………………………………………………………………………………… 45 XIII. Coverage Principles…………………………………………………………………………………………………………64 XIV. Handling Indemnity Issues…………………………………….………………………………………………… 66 A. Implied Indemnity………………………………………………………………………………………… 66 B. Rules for Interpreting Contractual Indemnity Language ……………………………… 67 C. Fault Based Indemnity……………………………………………………………………………………… 67 D. No-Fault Contractual Indemnity……………………………………………………………………… 68 E. Liability v. Indemnity………………………………………………………………………………………… 69 F. Enforcing the Right of Indemnity……………………………………………………………………… 69 G. What to Do if a Tender Has Been Submitted to You or Your Insured…………… 70 H. Insured Additional Insured and Certificates of Insurance……………………………… 70 XV. Medicare Secondary Payer Act…………………………………………………………………………………………71 XVI. Employment Law for Public Entities…………………………………………………………………………… 72 A. Malice in Employment Termination………………………………………………………………… 72 B. Whistleblower…………………………………………………………………………………………………… 73 C. 42 U.S.C. § 1983……………………………………………………………………………………………… 74 D. Americans with Disabilities Act………………………………………………………………………… 77 XVII. Alternative Dispute Resolution…………………………………………………………………………………… 77 A. Arbitration……………………………………………………………………………………………………………77 B. Mediation…………………………………………………………………………………………………………… 79 XVIII. Privacy and Social Media in the Workplace………………………………………………………………… 80 XIX. The West Virginia Judiciary…………………………………………………………………………………………… 82 A. The Supreme Court of Appeals of West Virginia……………………………………………… 82 B. Circuit Courts…………………………………………………………………………………………………… 82 C. Other Courts…………………………………………………………………………………………………… 83
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  6. 6. 6 About Our Firm Bailey & Wyant, PLLC was formed in 2000. Since its inception, the firm has grown from only a handful of attorneys to its current mark of thirty. We have offices in both Charleston and Wheeling, West Virginia, and provide representation to clients throughout West Vir- ginia, Ohio, Kentucky, and Pennsylvania. Our philosophy is simple. We provide aggressive and effective legal representation, while being ever mindful of each client's individual needs, goals, and economic interests. No matter how complex or novel, our focus in a case is always to reach the right resolution for our client. Bailey & Wyant’s litigation department focuses its efforts in representing indi- viduals, businesses and governmental entities in a variety of claims, including general civil litigation and insurance defense, governmental liability, labor and employment law, product liability and personal injury, medical and other pro- fessional liability, construction and design defect, administrative and regulatory law, environmental law and natural resources, insurance coverage and extra- contractual matters, and corporate litigation. In addition to providing litigation-related services, Bailey & Wyant also serves as general counsel to several state and county agencies and commissions. The lawyers at Bailey & Wyant frequently conduct instructional seminars and conferences to lawyers and non-lawyers on a variety of issues, including em- ployment-related matters, insurance claims handling and extra-contractual is- sues, and public contracts and procurement. Our attorneys are also heavily committed to participating in philanthropic endeavors and community projects. www.baileywyant.com Charleston Office 500 Virginia Street East, Suite 600 Charleston, WV 25301 T: 304.345.4222 F: 304.343.3133 Wheeling Office 1219 Chapline Street Wheeling, WV 26003 T: 304.233.3100 F: 304.233.0201
  7. 7. 7 I. WEST VIRGINIA TORT LAW A. The Basic Elements West Virginia employs a traditional English common-law tort system, with most of the well-recognized rules and principles intact. Negligence is the failure to exercise ordinary care, and ordinary care is that kind and degree of care or caution which an ordinary prudent and careful person would exercise under the same or similar circumstances. Negligence is doing something a reasonably prudent person would not do in the same or similar circumstances, or the failing or refusing to do something a reasonably prudent persons would have done in the same, or similar circumstance. A negligence claim requires a claimant to prove by a preponderance of the evidence that a breach of duty occurred which proximately caused injury to him or her. Negligence cannot be presumed; it must be proven. Contributory negligence means negligence of the plaintiff, which together with negligence of the defendant, proximately caused the accident. Where contributory negligence is charged by a party, it must be proven by a preponderance of the evidence by the party asserting it. Assumption of risk means that the plaintiff, knowing full well the hazards involved, failed to take precautions to protect himself from those known or reasonably to be expected hazards. The proximate cause of an event is the negligent act contributing to the accident, without which the accident would not have occurred. The proximate cause of an event is that cause which in actual sequence, unbroken by any independent cause, produces an event, and without which, the event would not have occurred. B. Comparative Negligence West Virginia follows a version of comparative negligence, the modified comparative fault 50% rule system. A plaintiff is barred from recovery if his or her negligence equals or exceeds 50% of the total negligence of all parties to the accident, which total negligence equals 100%. However, if Plaintiff is 49% or less at fault for the accident, then they may be eligible to recover damages. A plaintiff’s recovery is offset by the percentage of negligence attributable to him or her. For example, if a jury determines that a plaintiff’s total damages are $100,000, and further finds that the plaintiff was 20% at fault, then the plaintiff would be entitled to recover only 80%, or $80,000. In Bradley v. Appalachian Power Co, 163 W.Va. 332, 341-42, 256 S.E.2d 879, 885 (1979), the Supreme Court of Appeals in discussing contributory and comparative negligence noted: We do not accept the major premise of pure comparative negligence that a party should recover his damages regardless of his fault, so long as his fault is not 100 percent. Without embarking on an extended philosophical discussion of the nature and purpose of our legal system, we do state that in the field of tort law we are not willing to abandon the concept that where a party substantially contributes to his own damages, he should be permitted to recover
  8. 8. 8 for any part of them. We do recognize that the present rule that prohibits recovery to the plaintiff if he is at fault in the slightest degree is manifestly unfair, and in effect rewards the substantially negligent defendant by permitting him to escape any responsibility for his negligence. Our present judicial rule of contributory negligence is therefore modified to provide that a party is not barred from recovering in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident. Under Bradley, it is not initially necessary for the jury to make a comparison of each individual defendant’s negligence. The first determination is whether the plaintiff’s percentage of contributory negligence bars recovery. On this issue, the jury is instructed to determine if the defendants are liable to the plaintiff. Then the percentage, or degree of the plaintiff’s contributory negligence is compared to that of all of the other parties involved in the accident. King v. Kayak Mfg. Co., 182 W.Va. 276, 280, 279, 387 S.E.2d 511, 515 (1989). In Adkins v. Whitten, 171 W.Va. 106, 297 S.E.2d 881 (1982), the Supreme Court of Appeals held that “a trial court has a duty to instruct the jury as to the effect of the doctrine of comparative negligence when requested.” (Quoting Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 713, 289 S.E.2d 679, 688 (1882)). C. Agency An agent is one who acts on behalf of another and subject to his or her control. With respect to an employee/employer relationship, an employer is liable for all damages proximately caused by the negligence of his agent employee who is acting within the scope of his employment. An employee is acting within the course of his employment when he is engaged in doing, for his employer, either the act directed by the employer or any act which can fairly and reasonably be deemed to be a natural, direct and logical result of the act directed by the employer. If in doing such an act the employee acts negligently, that is negligence within the course of the employment. In order to recover against a tortfeasor’s employer, the plaintiff has the burden of proving by preponderance of the evidence that the tortfeasor was the employee of the employer, that the employee tortfeasor was negligent while acting within the scope of his employment, and that this negligence proximately caused damage to the plaintiff. Under West Virginia law, a corporation acts by and through its officers, agent, and employees. If an officer, agent or employee of a defendant corporation is found negligent in the performance of his or her duties, then any such negligence is attributable to the corporation and considered negligence on the part of the corporation, including the failure to comply with automobile and road safety laws. D. Independent Contractor Defense If a tortfeasor was acting as an independent contractor, then an employer has no responsibility for the tortfeasor's acts. Whether or not a tortfeasor is an independent contractor or agent depends on whether the employer controlled, or had the right to control, the work of the tortfeasor. Control in this sense means the right to determine where and in what manner the work would be done. It does not matter that the employer never actually exercised control over the tortfeasor, as long as the employer reserved to itself the right to do so.
  9. 9. 9 II. PROPERTY DAMAGE CLAIMS A. Personal Property Generally, the proper measure of damages for loss or destruction of personal property, other than that which has a peculiar value to its owner, such as an heirloom or a particular portrait, is the fair market value of the property at time of its loss or destruction. The proper measure of damages for injury to personal property is the difference between its fair market value immediately before the damage and its fair market value immediately after the damage, plus necessary reasonable expenses incurred by the owner in connection with the damage. However, when damaged personal property can be restored to is previous condition, the measure of damages should be the amount required to restore such property to its previous condition. Thus, when personal property is injured, the owner may recover costs of repairing it, plus his expenses stemming from the injury, including loss of use during repair. If the injury cannot be repaired or the cost of repair would exceed property's market value, then the owner may recover its lost value, plus his expenses stemming from the injury, including loss of use during time he has been deprived of his property. Testimony regarding the value of articles of personal property to a plaintiff and of the price the plaintiff paid for such personal property is inadmissible to show market value of such personal property. If the owner of a vehicle which is damaged and subsequently repaired can show diminution in value based upon structural damage after repair, then recovery is permitted for that diminution in addition to the cost of repair, but total shall not exceed market value of vehicle before it was damaged. In order to recover for diminution in value, in addition to costs of repairing a damaged vehicle, there must be actual proof that value is diminished following repair, diminution in value must be due to structural damage, and vehicle must have had significant value prior to accident. B. Realty When realty is injured the owner may recover the cost of repairing it, plus his expenses stemming from the injury, including loss of use during the repair period. If the injury cannot be repaired or the cost of repair would exceed the property's market value, then the owner may recover its lost value, plus his expenses stemming from the injury including loss of use during the time he has been deprived of his property. Annoyance and inconvenience can be considered as elements of proof in measuring damages for loss of use of real property. C. Adjusting Property Damage Claims In West Virginia, it is imperative that denials of first-party claims, particularly those involving property damage, are effectuated with caution. When an insurer wrongfully withholds or unreasonably delays payment of an insured's claim, the insurer is liable for all foreseeable, consequential damages naturally flowing from the delay. When a policyholder “substantially prevails” in a property damage suit against an insurer, the policyholder is entitled to damages for net economic loss caused by the delay, as well as an award for aggravation and inconvenience.
  10. 10. 10 The question of whether an insured has “substantially prevailed” against his or her insurance company on a property damage claim is determined by the status of negotiations between the insured and the insurer prior to the institution of the law suit. Where the insurance company has offered an amount materially below the damage estimates submitted by the insured, and the jury awards the insured an amount approximating the insured's damages, the insured has substantially prevailed. In addition, an insured “substantially prevails” in a property damage action against his or her insurer when the action is settled for an amount equal to or approximating the amount claimed by the insured immediately prior to the commencement of the action, as well as when the action is concluded by a jury verdict for such an amount. In either of these situations the insured is entitled to recover reasonable attorney's fees from his or her insurer, as long as the attorney's services were necessary to obtain payment of the insurance proceeds. When a policyholder substantially prevails on a first-party insurance claim against an insurer and becomes entitled to a reasonable attorney's fee, the amount of the attorney's fee is determined by the circuit judge and not by a jury. A reasonable contingent attorney's fee is presumed to be one-third of the recovery, unless the face value of the policy is extremely small or enormously large—under $20,000.00 or over $1,000,000.00. It is up to the circuit court to make an inquiry into what a reasonable fee might be. Whatever the award, that amount is unliquidated and unsettled until the circuit court issues its ruling. Only after the circuit court approves the policyholder's attorney's fee does the amount become liquidated and established. As such, prejudgment interest is not available. A circuit court may shift a policyholder's attorney's reasonable litigation expenses to the insurance carrier as well. However, in most cases, those litigation costs are not out-of- pocket expenditures because under a contingent fee agreement, the policyholder does not become responsible for these costs until after the insurance carrier pays the verdict or settlement. Accordingly, as with attorney’s fees, a policyholder usually may not recover prejudgment interest on litigation expenses incurred by his attorney. III. DAMAGES A. Overview of Damages It is the purpose of the law to compensate a person who has sustained injuries through the fault of another, as fully and as completely as it is possible in dollars and cents to make compensation for such injuries. However, damages which are purely speculative cannot be recovered. It is the uncertainty as to the fact of damages, and not as to the amount of damages, that is to be considered. Where it is certain that the damages resulted, uncertainty as to the amount does not justify the jury in refusing recovery. If a jury believes from a preponderance of the evidence that a plaintiff is entitled to recover a verdict, then it has a duty to take into consideration any or all of the following items: 1. Any and all bodily injuries sustained by the plaintiff and the extent and duration of such bodily injuries; 2. Any and all physical pain the plaintiff has suffered in the past;
  11. 11. 11 3. Any and all physical pain the plaintiff, with reasonable certainty, shall suffer in the future, and the probable duration or permanency of such pain; 4. Any and all suffering or mental anguish the plaintiff has suffered in the past; 5. Any and all suffering or mental anguish the plaintiff, with reasonable certainty, shall suffer in the future because of any such injuries, and the probable duration or permanency of such suffering or mental anguish; 6. Any and all effects the bodily injuries, pain, inconvenience or suffering have had in the past upon plaintiffs health and plaintiffs ability to enjoy life, the extent of such losses of his health and ability to enjoy life, and any and all losses of health and ability to enjoy life, which with reasonable certainty plaintiff will suffer in the future because of the effects of said injuries; 7. The just, reasonable, and necessary doctor, hospital, and medical expenses incurred by plaintiff as a result of his injuries; 8. The reasonable and necessary doctor, hospital, and medical expenses plaintiff shall with reasonable certainty incur in the future as a result of his injuries; 9. Any and all past losses of earnings or caning capacity which plaintiff has lost in the past by reason of being unable to work as a result of said injuries; 10. Any and all loss of earnings or earning capacity and fringe benefits which plaintiff shall with reasonable certainty lose in the future by reason of being unable to work as a result of said injuries, and the probable extent and duration of any such future loss of earnings or earning capacity; 11. The reasonable value of household services, if any, provided to or for plaintiff by reason of plaintiffs injuries, and the reasonable value of household services that with reasonable certainty shall be necessary for plaintiff in the future and the probable extent and duration of any such future household services or expenses; and 12. In considering the duration or permanency of any such injuries, pain, suffering, or losses, a jury may take into consideration the plaintiffs’ probable life expectancy. B. Non-economic Damages Compensation for pain, suffering, loss of enjoyment of life, and loss of consortium are general items of damages. There is no rule or measure upon which these damages can be based. The amount of compensation to be awarded for such injuries is left by law to the sound discretion of the jury as to what is fair and just.
  12. 12. 12 Loss of the enjoyment of life, or of the ability to enjoy life, refers to how the injury has affected the plaintiff’s ability to perform and enjoy the ordinary functions of life. The degree of such an injury is measured by ascertaining how the injury has deprived the plaintiff of his or her customary activities as a whole person. Accordingly, in assessing damages for loss of the ability to enjoy life, a jury considers the customary activities of the plaintiff prior to the incident giving rise to the claim, and how, if at all, the injuries he or she suffered affects his or her ability to perform and enjoy these activities. Consortium is defined generally as the society, companionship, comfort, guidance, kindly offices and advice existing between a husband and a wife or between a parent and a child. If a jury determines from the evidence that there has been an interference with the consortium rights of a plaintiff’s husband, wife or child, damages may be assessed against the defendant. In determining the damage suffered by a plaintiff, a jury may consider as an element of damages any aggravation of any preexisting condition which proximately results from the incident. Even if the jury believes that the plaintiff was afflicted with some condition at the time of the injury from which he or she might have a predisposition, but was otherwise in good health, and the injuries received in the collision developed or aggravated this condition and predisposition, then the defendant is liable for the plaintiff’s condition or his or her aggravation. The extent or seriousness of a permanent injury is measured by ascertaining how the injury has deprived a plaintiff of his customary activities and has reduced the capacity of the plaintiff to function as a whole person. C. Future Economic Damages In determining the loss of earning capacity, it is unnecessary that the jury find that the plaintiff would actually have worked at a particular job or have earned a certain sum of money. All the plaintiff is required to prove is that he could have performed a particular job or work but is unable to do so now, and will with reasonable certainty be unable to do such work in the future. The jury is to reduce the claim of plaintiff for future loss of earnings and future fringe benefits, if any, to present dollar value. However, since there is no definite measure to use to determine indefinite damages, such as pain, suffering, loss of enjoyment of life, and loss of consortium, a jury is not to make a similar reduction for those general damages. In deliberating the present value of the future income and benefits of the plaintiff, the jury should use that rate of interest which, in the jury's considered judgment, is reasonable, just, and right under the circumstances, taking into consideration the evidence presented, the jury's knowledge of the prevailing interest rates, and what rate of interest could fairly be expected from safe investments that a person of ordinary prudence, but without particular financial experience or skill, could earn in the area. The fact that the actual cost of future medical care for plaintiff could not be stated to an absolute certainty does not defeat his right to recover for such fixture medical expenses. It is sufficient that the projected expenses were not speculative or conjectural, are reasonably probable, and were indicated within an approximate range.
  13. 13. 13 D. Wrongful Death Damages In awarding damages for wrongful death, it is the jury’s duty to award, pursuant to West Virginia Code § 55- 7-6(c)(1), monetary damages for the following: 1. The sorrow and mental anguish suffered by the decedent's family members and his or her other beneficiaries; 2. The loss of solace, which may include society, companionship, comfort guidance, kindly offices and advice, which has been suffered by the decedent's family members and other beneficiaries as a result of his death; 3. Compensation for the reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; 4. Expenses for the care, treatment and hospitalization of decedent incident to the injury which resulted in his or her death; and 5. Reasonable funeral expenses. The “reasonably expected loss of income” is the total amount, properly discounted to present value that a decedent would reasonably have been expected to earn had he or she lived out a normal life span. It is not merely the amount of his or her future earnings which his family and other beneficiaries might reasonably have expected to receive from had he lived out a normal life span. E. Punitive Damages A jury may award punitive damages against a defendant as punishment for willfulness, wantonness, malice, gross negligence or other like aggravation of the wrong done to the plaintiff. Punitive damages are something in addition to full compensation, given with a view to the gravity of the offense, to punish the defendant and to make them an example, so that others will be deterred from engaging in similar conduct. The law awards compensatory damages when the unlawful act is done without intent to do wrong or where there is no malice or where the offense is not oppressively or recklessly committed, while punitive damages are awarded where the wrongful act is done with a bad motive, or in a manner so wanton or reckless as to manifest a willful disregard of the rights of others. In awarding punitive damages, a jury may consider the following factors: 1. The harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If defendant's actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater. 2. Whether defendant’s conduct was reprehensible, and in doing so should take into account how long defendant continued in his actions, whether defendant was aware that its actions were causing or were likely to cause harm, whether defendant attempted to conceal or cover up his actions or the harm caused by such actions, whether/how often defendant engaged in similar conduct in the past.
  14. 14. 14 3. Whether defendant profited from' his wrongful conduct, and if you find defendant did profit from his conduct you may remove the profit and your award should be in excess of the profit, so that the award discourages future bad acts by defendant. 4. As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages. 5. In determining the amount of punitive damages, the financial position of defendant is relevant. It is worth noting that it is well settled in West Virginia that it is not against public policy for an insurance contract to cover punitive damages. Hensley v. Erie Ins. Co., 283 S.E.2d 227 (1981). Barring a conspicuous exclusion, courts in West Virginia will find coverage for such awards. In addition, in practice, it is not uncommon for trial courts in West Virginia to “backdoor” punitive damage awards. Basically, judges will hold in abeyance any ruling on punitive damages issues until after evidence is presented at trial. In doing so, they let in every piece of incriminating evidence. After the evidence is presented, they will dismiss the punitive damages claim. The result is an inflated compensatory damages award by the jury. By allowing “backdoor” punitive damages, the judge avoids being overruled by the Supreme Court of Appeals, and the jury gets an opportunity to punish the defendant. A plaintiff is prohibited from seeking punitive damages from a government agency in any action. W. Va. Code § 55-17-4(c). “Government agency” includes a constitutional officer or 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. W. Va. Code § 55-17-2(2). However, we have seen compelling arguments to the contrary under a state “constitutional tort” theory of liability. In any civil action involving a political subdivision or any of its employees as a party defendant, an award of punitive or exemplary damages against such political subdivision is prohibited. W. Va. Code §29-12A-7(a). The seminal punitive damages cases in West Virginia are as follows: Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897 (1991) In this matter, the Supreme Court of Appeals exhaustively set forth the law in West Virginia as it pertains to awards of punitive damages:  Allowing a jury to return punitive damages without finding compensatory damages is overruled. Punitive damages must bear a reasonable relationship to the potential of harm caused by the defendant's actions.  Under our system for an award and review of punitive damages awards, there must be: (1) a reasonable constraint on jury discretion; (2) a meaningful and adequate review by the trial court using well-established principles; and (3) a meaningful and adequate appellate review, which may occur when an application is made for an appeal.  When the trial court instructs the jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:
  15. 15. 15 (1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If the defendant's actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater. (2) The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant's conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him. (3) If the defendant profited from his wrongful conduct, the punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant. (4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages. (5) The financial position of the defendant is relevant.  When the trial court reviews an award of punitive damages, the court should, at a minimum, consider the factors given to the jury as well as the following additional factors:  The costs of the litigation;  Any criminal sanctions imposed on the defendant for his conduct;  Any other civil actions against the same defendant, based on the same conduct; and  The appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed. A factor that may justify punitive damages is the cost of litigation to the plaintiff. Because not all relevant information is available to the jury, it is likely that in some cases the jury will make an award that is reasonable on the facts as the jury know them, but that will require downward adjustment by the trial court through remittitur because of factors that would be prejudicial to the defendant if admitted at trial... “Upon petition, this Court will review all punitive damages awards. In our review of the petition, we will consider the same factors that we require the jury and trial judge to consider, and all petitions must address each and every factor set forth in Syllabus Points 3 and 4 of this case with particularity, summarizing the evidence presented to the jury on the subject or to the trial court at the post-judgment review stage. Assignments of error related to a factor not specifically addressed in the petition will be deemed waived as a matter of state law.”
  16. 16. 16 TXO Production Corp. v. Alliance Resources Corp., 419 S.E.2d 870 (W.Va. 1992) In this case, the Supreme Court of Appeals offered advice as to a reasonable punitive damages award: “The outer limit of the ratio of punitive damages to compensatory damages in cases in which the defendant has acted with extreme negligence or wanton disregard but with no actual intention to cause harm and in which compensatory damages are neither negligible nor very large is roughly 5 to 1. However, when the defendant has acted with actual evil intention, much higher ratios are not per se unconstitutional.” Ironically, notwithstanding its suggested ratio, the Court upheld and found reasonable the verdict against TXO for $19,000 in compensatory damages and $10,000,000 in punitive damages for TXO’s acts of slander and libel. The Court noted: “[T]he jury may reasonably have determined that TXO set out on a malicious and fraudulent course to win back, either in whole or in part, the lucrative stream of royalties that it had ceded to Alliance. The punitive award is certainly large, but in light of the millions of dollars potentially at stake, TXO's bad faith, the fact that TXO's scheme was part of a larger pattern of fraud, trickery, and deceit, and TXO's wealth, the award cannot be said to be beyond the power of the State to allow. “ State Farm v. Campbell, 538 U.S. 408 (2003) In this seminal case, the Supreme Court of the United States set forth the following holding regarding ratio of punitive damages awards: “We have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In [Pacific Mut. Life Ins. Co. v.] Haslip, [499 U.S. 1(1991)] in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. We cited that 4-to-1 ratio again in [BMW of North America, Inc. v.] Gore, [517 U.S. 559 (1996)]. The Court further referenced a long legislative history, dating back over 700 years and going forward to today, providing that sanctions of double, treble, or quadruple damages to deter and punish. While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State's goal of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, 145 to 1.” Boyd v. Goffoli, 608 S.E.2d 169 (W.Va. 2004) In this case, the Supreme Court of Appeals encountered a similar situation, but declined to overturn the award, finding the ratio of damages, even with potentially inflated compensatory damages, to be acceptable: “In addition, even if we were to consider a portion of the compensatory damages in this case to be punitive damages so as to result in a ratio of 8.4:1, such a ratio is by no means necessarily unconstitutional. As the Supreme Court noted in Campbell, while single-digit multipliers (meaning a ratio of up to 9 to 1) are more likely to comport with due process, there are no rigid benchmarks that a punitive damages award may not surpass. In sum, there is nothing in our jurisprudence or that of the United States Supreme Court that renders the ratio of the punitive damages award to the compensatory damages award in this case improper.”
  17. 17. 17 Perrine, et al. v. E.I. du Pont de Nemours and Co., et al., No. 34333, 34334, 34335 (W.Va. 2010) This environmental class action case featured an appeal from a judgment of the Circuit Court of Harrison County, which denied defendants’ motions for judgment as a matter of law or, in the alternative, to decertify the class, for a new trial, and to vacate or reduce the award of punitive damages. Defendants were found liable to plaintiffs in the amount of $381,737,522 for off-site arsenic, cadmium, and lead contamination which emanated from defendant's zinc smelter facility in Spelter, West Virginia. Among other findings, the Supreme Court of Appeals held that punitive damages may not be awarded on a cause of action for medical monitoring. The verdict was conditionally affirmed, but the punitive damages award was reversed and the case was remanded. F. Fee Shifting Statutes West Virginia code contains seven fee shifting statutes. In Workers’ Compensation cases the Workers’ Compensation an attorney representing a claimant who prevails on his/her claim is entitled to a twenty percent (20%) attorney’s fee award, determined by the base award amount. W. Va. Code § 23-5-16. The West Virginia Surface Mining and Reclamation Act also allows for the recovery of attorney’s fees. W. Va. Code § 22-3-1, et seq. A plaintiff who substantially prevails under the West Virginia Human Rights Act is also entitled to recover attorney’s fees. W. Va. Code § 5-11-1, et seq. Under the West Virginia Whistleblower statute a plaintiff who substantially prevails on his/her claims may also recover attorney’s fees. W. Va. Code § 6C-1-1, et seq. Any individual who requests the release of documents pursuant to a Freedom of Information request may recover attorney’s fees if the circuit court rules the documents should be released. W. Va. Code § 29B-1-1, et seq. There is no recovery limitation set forth in the statutes. Even a $500 verdict is sufficient to trigger the fee shifting statute. The fee shifting provision potentially opens up the recovery to substantially more than the jury verdict. The Court determines the appropriate attorney’s fees, which can vary and is determined by the judge on a case-by- case basis. For example, a jury finds that a Plaintiff was terminated due to her age and awards the Plaintiff $500.00. Even though Defendant incurred $100,000 in defense costs at a rate of $175 per hour, a Judge may find that Plaintiff reasonably incurred $250,000 at a rate of $250 per hour, in prevailing on her claim Under Federal law there are several provisions allowing for the recovery of attorney’s fees to a plaintiff who substantially prevails on his her claims. This includes claims filed pursuant to 42 U.S.C. § 1983 and § 42 U.S.C. § 1988. An individual who prevails on a claim under the ADA is also entitled to recover attorney’s fees. 42 U.S.C. § 2205. Such fees are also available in Family Medical Leave Act violation cases. 29 U.S.C. § 2617(a) (3). An plaintiff in a Fair Labor Standards Act claim may also recover attorney’s fees. 29 U.S.C. § 216. Federal statutes also permit the recovery of attorney’s fees in Civil Rights Act of 1964 public accommodation cases (42 U.S.C. § 2000a-3(b)), Equal Employment Opportunity Commission (42 U.S.C. § 2000e-5(k)), Fair housing Act (42 U.S.C. § 3613 (c)), Age Discrimination in Employment Act (42 U.S.C. § 2000e(k)), Voting Rights Act (42 U.S.C. § 1973l(e)), and Age Discrimination Act (42 U.S.C. § 1997a(b)). IV. Governmental Tort Claims and Insurance Reform Act Article 12A of Chapter 29 of the West Virginia Code is the statute that regulates actions against political subdivisions (i.e., not the State or its agencies). According to its stated purpose, the Governmental Tort Claims and Insurance Reform Act (“Tort Immunities Act”), was enacted “to limit liability of political subdivisions and provide immunity to political subdivisions in certain instances and to regulate the costs and coverage of insurance available to political subdivisions for such liability.” The Legislature found that
  18. 18. 18 the political subdivisions of this state were unable to procure adequate liability insurance coverage at a reasonable cost due to: “The high cost in defending such claims, the risk of liability beyond the affordable coverage and the inability of political subdivision to raise sufficient revenues for the procurement of such coverage without reducing the quantity and quality of traditional governmental services.” The Tort Immunities Act applies to most county or municipal public bodies that are charged by law with the performance of a government function. Both governmental and proprietary functions are covered by the provisions of the Tort Immunities Act. "Employee" means an officer, agent, employee, or servant, whether compensated or not, whether full-time or not, who is authorized to act and is acting within the scope of his or her employment for a political subdivision."Employee" includes any elected or appointed official of a political subdivision."Employee" does not include an independent contractor of a political subdivision. "Municipality" means any incorporated city, town or village and all institutions, agencies or instrumentalities of a municipality. "Political subdivision" means any county commission, municipality and county board of education; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities or towns; a combined city- county health department created pursuant to article two, chapter sixteen of this code; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function: Provided, That hospitals of a political subdivision and their employees are expressly excluded from the provisions of this article. "Scope of employment" means performance by an employee acting in good faith within the duties of his or her office or employment or tasks lawfully assigned by a competent authority but does not include corruption or fraud. "State" means the state of West Virginia, including, but not limited to, the Legislature, the supreme court of appeals, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, colleges, and universities, institutions, and other instrumentalities of the state of West Virginia."State" does not include political subdivisions. A. Immunities Subject to certain exclusions, addressed herein, a political subdivision cannot be held liable for damages in any civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the public entity or an employee of the public entity. Actions for prospective or extraordinary relief (mandamus, injunction, prohibition, etc.) are not restricted by the provision of the Tort Immunities Act. Generally speaking, a public entity can be held liable for injury, death, or loss to person or property caused by a negligent act or omission of an employee who is acting within the scope of his or her authority. A political subdivision enjoys absolute immunity, irrespective of the presence of negligence, for losses or claims resulting from any of the following:  Legislative or quasi-legislative functions;  Judicial, quasi-judicial or prosecutorial functions;  Execution or enforcement of the lawful orders of any court;  Adoption or failure to adopt an ordinance, policy, statute, rule, regulation or other law;
  19. 19. 19  Civil disobedience or the method of providing police, law enforcement or fire protection.  Snow or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of a political subdivision;  Natural conditions of unimproved property of the political subdivision;  Assessment or collection of taxes lawfully imposed or special assessments, license or registration fees or other fees or charges imposed by law;  Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority;  Inspection powers or functions, including failure to make an inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety;  Any claim covered by any worker's compensation law or any employer's liability law;  Misrepresentation, if unintentional;  Any court-ordered or administratively approved work release or treatment or rehabilitation program;  Provision, equipping, lawful operation or maintenance of any prison, jail or correctional facility, or injuries resulting from the parole or escape of a prisoner;  Any claim or action based on the theory of manufacturer's products liability or breach of warranty or merchantability or fitness for a specific purpose, either expressed or implied;  The operation of dumps, sanitary landfills, and facilities where conducted directly by a political subdivision; or  The issuance of revenue bonds or the refusal to issue revenue bonds. An employee of a political subdivision is immune from liability unless one of the following applies: 1. If the employee’s acts or omissions were manifestly outside the scope of employment or official responsibilities; 2. If the employee’s acts or omissions were performed with malicious purpose, in bad faith, or in a wanton and reckless manner; or 3. If liability is imposed upon the employee by a provision of the West Virginia Code. It should be noted that the immunity afforded an employee does not affect or limit the liability of the political subdivision for an act of the employee. The Tort Immunities Act contains a strict prohibition against awards of punitive or exemplary damages. W. Va. Code §29-12A-7(a). Damages for economic losses are not capped. Non-economic damages are capped at five hundred thousand dollars ($500,000.00). W. Va. Code §29-12A-7(b). As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the State’s business, we have recognized that “proceedings against boards and commissions, created by the Legislature, as agencies of the State, are suits against the state within the meaning of Article VI, Section 35, of the Constitution of West Virginia, even though the State is not named as a party in such proceedings.”
  20. 20. 20 Hamill v. Koontz, 134 W.Va. 439, 443 S.E.2d 879, 882 (1950); see also Hesse v. State Soil Conservation Committee, 153 W.Va. 111, 115, 168 S.E.2d 293, 295 (1969) (constitutional immunity “relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties.”) Arnold Agency v. W. Va. Lottery Comm'n, 206 W. Va. 583, 590-91, 526 S.E.2d 814, 821- 22 (1999) (emphasis added). B. Special Duty Doctrine Some immunities are statutory, such as the immunity contained in West Virginia Code § 29-12A-5(a)(9), which provides that a political subdivision is immune from liability if a loss or claim results from “licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority.” Another immunity is contained in West Virginia Code § 29-12A-5(a)(10), which provides immunity for “inspection powers or functions, including failure to make an inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property complies with or violates any law or contains a hazard to health or safety.” In Syllabus Point 4, Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d 761 (1995), the court held: Pursuant to W. Va. Code § 29-12A-4(c)(2) (1986) and W. Va. Code § 29-12A-5(a)(9) (1986), a political subdivision is immune from liability if a loss or claim results from licensing powers or functions such as the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority, regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision’s employees while acting within the scope of employment. Generally, “[t]he duty imposed upon a governmental entity is one owed to the general public, and unless the injured party can demonstrate that some special relationship existed between the injured person and the allegedly negligent entity, the claim is barred.” Jeffrey v. West Virginia Dep’t of Pub. Safety, Div. of Cor., 198 W.Va. 609, 614, 482 S.E.2d 226, 231 (1996). [T]he public duty doctrine is a principle independent of the doctrine of governmental immunity, although in practice it achieves must the same result.” Benson v. Kutsch, 181 W.Va. 1, 2, 380 S.E.2d 36, 37 (1989). The public duty doctrine is not an immunity; but rests on the principle that recovery may be had for negligence only if a duty has been breached which was owed to the particular person seeking recovery. Parkulo w. West Virginia Bd. of Probation & Parole, 199 W.Va. 161, 172, 483 S.E.2d 507, 518 (1996). Under the public duty doctrine the governmental entity’s liability for nondiscriminatory governmental functions may not be predicated upon the breach of a general duty owed to the public as a whole; instead, only the breach of a duty owed to the particular person injured is actionable.” Wolfe v. City of Wheeling, 182 W.Va. 252, 256, 387 S.E.2d 307, 310 (1989). The linchpin of the “public duty doctrine” is that some governmental acts create duties to the public as a whole and not to the particular private person or private citizen who may be harmed by such acts. Parkulo, 199 W.Va. at 172, 482 S.E.2d at 518. A special relationship only exists when there exists:
  21. 21. 21 (1) An assumption by the state governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the state governmental entity’s agents that inaction could lead to harm; (3) some form of direct contact between the state governmental entity’s agents and the injured party; and (4) that party’s justifiable reliance on the state governmental entity’s affirmative undertaking. Syllabus Point 10, Id., 199 W. Va. At 164, 483 S.E.2d at 510. The determination of a “special duty” is generally a question of fact for the trier of fact. Syllabus Point 11, Id. C. Insurance When a public entity or its employee is insured under a liability insurance policy, the terms of the policy govern rights and obligations of the public entity and the insurer with respect to the investigation, settlement, payment, and defense of suits against the public entity, or its employees covered by the policy. W. Va. Code § 29-12A-5. Many policies incorporate by reference the language of any applicable West Virginia statutes and expressly mandate that statutory language supersedes policy language where conflicts between the two are present. Parkulo v. West Virginia Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996). This, of course, requires diligence on the part of the underwriter to know and understand the statutory and regulatory provisions of West Virginia law. W. Va. Code § 33-11-1, et seq. A public entity has a right of indemnity against an insurer up to the limits of the policy. A public entity and its employees cannot be held liable for any costs, judgments or settlements paid through an applicable policy of insurance. WV Code § 29-12A-9. D. Judgments Any judgment entered against a political subdivision for a loss caused by an act or omission of the political subdivision or its employee cannot be satisfied by execution, judicial sale, garnishment, or attachment of the political subdivision’s real or personal property, money, accounts or investments. W. Va. Code § 29-12A-10(a). Judgments can only be paid from funds allocated by the political subdivision allocated for that purpose. W. Va. Code § 29-12A-10(b). If insufficient funds have been allocated, the taxing authority of the political subdivision will place the item on the next annual fiscal year budget. Id. E. Defense of Employees A political subdivision must provide for the defense of an employee in any state or federal court in any civil action or proceeding to recover damages for injury, death, or loss to persons or property caused by an act or omission of the employee if the act or omission is alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment or official responsibilities. W. Va. Code § 29-12A-11. Funds expended by a public entity in defending its employees can be apportioned from funds appropriated for such a purpose or pursuant to a contractual agreement between the public entity and its insurer. Id. Thus, when it is plead that an officer or employee of a public entity has acted maliciously, criminally or in bad faith, a compelling argument can be presented that neither the political subdivision, nor its insurer, has a duty to defend the employee. Id. If a political subdivision refuses to provide a defense to an employee, an employee may file an action for declaratory relief to determine the veracity of such refusal. W. Va. Code § 29-12A-11(c). In West Virginia the duty to defend is broader than the duty to indemnify. Bower v. Hi-Lad. Inc., 216 W.Va. 634, 651 609 S.E.2d 895, 912 (2004).
  22. 22. 22 Under this rule, if one allegation of the complaint would be covered under the applicable terms of the insurance policy then the insurance company is required to defend the insured on all claims although the company may ultimately not owe any duty to indemnify. F. Indemnification of Employees With respect to indemnification, the Tort Immunities Act provides that an employee is to be indemnified for the amount of any judgment rendered against the employee in a state or federal court that is for damages for injury, death, or loss to persons or property caused by an act or omission of the employee, if the employee was acting in good faith and within the scope of his employment or official responsibilities. Thus, unless and until such a determination has been made, no duty to indemnify arises on the part of the political subdivision. Be mindful, however, an insurer has a greater obligation to defend than indemnify. It has been argued that, although this provision of the Tort Immunities Act expressly notes that there is no obligation on the part of the political subdivision to indemnify an employee for acts committed in bad faith or outside the scope of employment, the employee indemnify provisions contain no similar protection for an insurer of a public entity. We are aware, however, of no instances in which the proposition was successfully mounted because, as stated before, the terms of the applicable policy govern the rights and obligations of the public entity with respect to settlement, payment, and defense of suits against the public entity or its employees covered by the policy. In most instances, an applicable policy will contain an intentional or criminal acts exclusion whereby coverage is precluded in the event the insured has acted intentionally or criminally to bring about the harm caused. A public entity has the right to seek recoupment for fees, costs, and payments made on behalf of an employee if it is shown that the conduct of the employee which gave rise to the claim or action as outside the scope of his employment or if the employee fails to cooperate in good faith in the defense of the claim or action. In 42 U.S.C. § 1983 actions state and local officials may be sued in their “personal” capacity where the suit seeks to impose individual, personal liability on the government officer for actions taken under color of state law with the badge of state authority. Hafer v. Melo, 502 U.S. 21 (1991). There may be instances in which the position of the public entity and an employee are adverse and additional counsel will need to be retained for each. G. Procedure From a procedural standpoint, actions against a public entity are located or where the cause of action arose. When a suit is instituted under the authority of the Tort Immunities Act, the public entity must be named as a defendant. An employee acting within the scope of his employment cannot be named as a defendant. Thus, if an employee of the public entity is named as a defendant, it can be argued that circumstantial evidence exists that the plaintiff believes the employee was acting outside the scope of employment. In that event, coverage for the employee’s acts or omissions would be precluded under the provisions of the Tort Immunities Act. As matter of practice, however, the term “scope of employment” should be broadly construed. On the other hand, we have successfully argued that if an employee is named without specific allegations that their actions were manifestly outside the scope of their employment or performed with malicious purpose, in bad faith, or in a wanton and reckless manner, that the employee is immune and must be dismissed.
  23. 23. 23 V. Qualified Immunity The common law immunity of the State in suits brought under the authority of W. Va. Code § 29-12-5 with respect to judicial, legislative, and executive (or administrative) policy-making acts and omissions is absolute and extends to the judicial, legislative, and executive (or administrative) officials when performing those functions. Syllabus Point 7, Parkulo, 199 W.Va. at 161, 483 S.E.2d at 507. A public executive official who is acting within the scope of this authority and is not covered by the provisions of the Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq., is entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate clearly established laws of which a reasonable official would have known. There is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive. Syllabus Point 8, Parkulo, 199 W.Va. at 161, 483 S.E.2d at 507. “In cases arising under W. Va. Code § 29-12-5, and in the absence of express provisions of the insurance contract to the contrary, the immunity of the State is coterminous with the qualified immunity of a public executive official whose acts or omissions give rise to the case. Syllabus Point 9, Id. As such, the qualified immunity available to a state official is also available to the State. However, on occasion, the State will be entitled to immunity when the official is not entitled to the same immunity; in others, the official will be entitled to immunity when the State is not. The existence of the State’s immunity of the State must be determined on a case-by-case basis. Id. The common law doctrine of qualified immunity is designed to protect public officials from the threat of litigation resulting from difficult decisions which must be made in the course of their employment. Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995). In Clark, the Supreme Court of Appeals concluded that the doctrine of qualified immunity bars a claim of mere negligence against the Department of Natural Resources, a state agency not within the purview of the West Virginia Government of Tort Claims and Insurance Reform Act, and against Officer Dunn, an officer of that department acting within the scope of his employment, with respect to the discretionary judgments, decisions, and actions of its public officers. Id. at 380. To overcome this immunity for claim against a State agency or its employees or officials acting within the scope of their authority, a plaintiff must establish that the agency employee or official knowingly violated a clearly established law, or acted maliciously, fraudulently, or oppressively. Parkulo v. West Virginia Board of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996); Clark, 465 S.E.2d 394 (citing State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1991)). In other words, the State, its agencies, officials and employees are immune for acts or omissions arising out of the exercise of discretion in carrying out their duties, so long as they are not violating any known law or acting with malice or bad faith. Syl. pt. 8, Parkulo. The simple use of the words “willful, deliberate, or intentional” is insufficient to overcome the Defendant’s entitlement to qualified immunity. See Pinder v. Johnson, 54 F.3d 1169, 1173 (4th Cir. 1996)(stating that for a right to be clearly established, it must be established in a particularized and relevant sense, not merely as an overarching entitlement to due process."). The common law doctrine of qualified immunity was scrutinized and analyzed in detail by the West Virginia Supreme Court of Appeals in State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). The Court determined that: “The provision of immunity rests on the view that the threat of liability will make federal officials timid in carrying out their official duties, and that effective government will be promoted if officials are freed the costs of vexations and often frivolous damages suits.” Id. (quoting Westfall v. Erwin, 484 U.S. 292, 295 (1988)). In Chase, the West Virginia Supreme Court of Appeals adopted the test used by federal courts to determine the applicability of the doctrine of qualified immunity for the acts of public officials. Specifically, the Court employed the standard developed by the United States Supreme Court in Harlow v. Fitzgerald, holding that “government officials performing discretionary functions generally are shielded from civil damages insofar as their conduct does not violate clearly
  24. 24. 24 established statutory or constitutional rights of which a reasonable person would have known.” Id. at 362, 424 S.E.2d at 597 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). The Court explained further that the term “reasonable person” is defined as a “a reasonable public official occupying the same position as the defendant public official.” Id. at n. 16 (citing Anderson v. Creighton, 483 U.S. 635 (1987)). The Supreme Court of the United States established a rigid two-step sequence for determining a defendant's entitlement to qualified immunity. A court must first decide whether the facts alleged set forth a violation of a constitutional right and if the plaintiff has satisfied this first step, the court must decide whether the right at issue was 'clearly established' at the time of the defendant's alleged misconduct. Pearson v. Callahan, 129 S. Ct. 808, 815-16, 172 L. Ed. 2d 565 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) (internal citations omitted)). Without modifying the elements of the qualified immunity analysis, the Supreme Court recently held that courts no longer need to adhere to the rigid sequence of the analysis established in Saucier, but may instead determine which prong should be addressed first based upon the facts of the case before it. See Pearson, supra. “Immunities under West Virginia law are more than a defense to a suit in that they grant governmental bodies and public officials the right not to be subject to the burden of trial at all.” Hutchinson v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996) (emphasis added). Indeed “[t]he very heart of the immunity defense is that it spares the defendant from having to go forward with an inquiry into the merits of the case.” Id. (emphasis added.)(citing Swint v. Chambers County Commission, 514 U.S. 35 (parallel citations omitted) (1995)). As Justice Cleckley in Hutchinson wrote: As assertion of qualified or absolute immunity should be heard and resolved prior to any trial because, if the claim of immunity is proper and valid, the very thing from which the defendant is immune – a trial – will absent a pretrial ruling occur and cannot be remedied by a later appeal. On the other hand, the trial judge must understand that a grant of summary judgment based upon immunity does not lead to a loss of right that cannot be corrected on appeal. Id. at note 13. Similarly, the United States Supreme Court used almost identical reasoning as Justice Cleckley did in Hutchinson when it recognized the importance of a government official’s right to be summarily dismissed from litigation when qualified immunity is applicable. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). “The privilege of immunity from suit is an immunity rather than a mere defense to liability, and like absolute immunity it is effectively lost if a case is erroneously permitted to go to trial.” Id. (emphasis added). Further, Saucier holds that immunities spare governmental defendants from the other burdens of litigation. Id. Other burdens of litigation have been held to include discovery. See Yoak v. Marshall University Bd. of Governors, 672 S.E.2d 191 (2008). VI. Deliberate Intent A “deliberate intent” cause of action is one in which an injured employee sues his or her employer as a result of a workplace accident resulting in bodily injury. This cause of action seeks damages against an employer over and above benefits provided by workers compensation insurance coverage. The West Virginia Legislature has authorized these lawsuits to proceed under the “deliberate intent” statute, West Virginia Code § 23-4-2(d) (2). Employers who are frequently sued for deliberate intent include trucking and mining operations, building and construction contractors, oil and gas drillers, heavy machinery operators, and other industrial and manual labor-related fields. Any employer, however, can be the target of a deliberate intent case.
  25. 25. 25 There are two types of deliberate intent claims. The first type is very uncommon and is brought forth pursuant to West Virginia Code § 23-4-2(d)(2)(i). This statutory provision permits claimants to bring suit where the employer's conduct is done with the deliberate intention to produce the specific resulting injury or death. This type of case requires a showing of an employer’s actual, specific intent to harm the employee. Merely establishing negligence, gross negligence, willful, wanton or reckless conduct does not meet the threshold required under part (i) of the statute. Because this section essentially requires plaintiffs to establish malice on the part of the employer, punitive damages are available. Due to the high threshold that must be met, there are very few cases brought under part (i). The overwhelming number of deliberate intent cases are brought forth under part (ii). With respect to West Virginia Code § 23-4-2(d)(2)(ii), it must be understood that the term “deliberate intent” is a misnomer, as the claimant need not establish that the employer intended to cause injury, but rather, that the employer intentionally exposed the employee to an unsafe working condition. Punitive damages are not recoverable under part (ii). The five element test set forth in part (ii) is as follows: The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven: (A) 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; (B) 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; (C) 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, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions; (D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and (E) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three whether a claim for benefits under this chapter is filed or not as a direct and proximate result of the specific unsafe working condition.”
  26. 26. 26 Common items used to establish unsafe working conditions include:  lock out/tag out failures (repairing vehicles, repairing equipment);  improper or lack of training and safety training (operation of equipment such as forklifts or cranes by untrained employees);  improper or lack of safety equipment (crib blocks, barriers);  improper modification of equipment (using equipment outside the scope of its intended use, or adding devices to equipment);  improperly constructed work areas (slopes, ditches, scaffolding);  unsafe and improper loading and unloading procedures. The second element in part (ii) is normally viewed as the most important and difficult hurdle that the employee must clear. The statute requires the employee to demonstrate that the employer, via a supervisor, manager, foreman, or safety officer, had actual knowledge of the unsafe working condition. Typical examples of demonstrating the actual knowledge requirement are as follows:  prior similar accidents;  prior complaints;  prior safety violations and/or fines;  employer having observed the workplace condition or conduct;  employer directing the employee to engage in unsafe conduct;  employer having prior knowledge of the actual unsafe condition;  failure to perform mandatory hazard assessment. The third element requires the claimant to prove that the unsafe condition was a violation of some regulatory code, rule, law, or commonly accepted industry standard, and not just a general safety standard or rule. Claimants typically assert violations of OSHA, ANSI, MSHA, or other laws and regulations that apply to working conditions. Usually, an expert witness with a background in these areas is retained to offer an opinion as to the whether the law or regulation was violated, and whether a subsequent injury or death was the result. It is important emphasize that the alleged violation must be a specific, applicable standard, and not simply “a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions.” The fourth element of the statute requires a claimant to demonstrate that the employer intentionally exposed its employee to the unsafe working condition. This is typically done by showing that the employer directed the claimant to perform the work, that the activity was part of the claimant's typical job duties and responsibilities, and/or acquiescence on the part of the employer. The final element of the five-part test requires the claimant to have suffered a serious compensable injury or death as a proximate result of the specific unsafe working condition. A claimant is not likely to file a lawsuit without alleging some sort of debilitating injury, such as back pain, neck pain, nerve damage, shoulder problems, or psychological problems, which renders him or her unable to work. A few things should be noted when defending against a deliberate intent lawsuit:
  27. 27. 27  There is no consideration of contributory negligence on the part of the claimant, except when the employer has proof of the employee's intent to self-injure or commit suicide, or if there is evidence of drug/ alcohol intoxication (Roberts v. Consolidated Coal Co., 590 S.E.2d 651 (2000)).  While contributory negligence is not a defense to a deliberate intent cause of action, an employer does not have the requisite actual knowledge of an unsafe working condition if the unsafe working condition existed solely as a result of the employees conduct. Deskins v. SW Jack Drilling, 600 S.E.2d 237 (W.Va. 2004).  If an accident is a completely anomaly with no prior similar incidents, the Supreme Court of Appeals has held that there may be no evidence that the employer exposed its employee to an unsafe condition in violation of any rule or regulation. Sedgmeyer v. McElroy Coal, 640 S.E.2d 129 W.Va. (2006).  An employer cannot avoid liability under the deliberate intent statute by claiming ignorance of an unsafe working condition as a result of failing to do a mandatory hazard assessment. Ryan v. Clonch Industries, 639 S.E.2d 756 (W.Va. 2006).  An employer’s third-party claims administrator is the employer's “agent” and is entitled to its immunity under the deliberate intent statute. Wetzel v. Employers Service Corp. of WV, 656 S.E.2d 55 (2007).  With respect to an unsafe working condition allegedly arising out of a failure to train, not remembering and not knowing regulations and safety procedures and precautions are two different things, and so long as the requisite training was provided, not remembering certain aspects as an employee does not automatically render the employer liable. Ramey v. Contractor Enterprises, Inc., No. 34804 (2010). “Actual knowledge is a high threshold that cannot be successfully met by speculation or conjecture; this requirement is not satisfied merely by evidence that the employer reasonably should have known of the specific unsafe working condition and of the strong probability of serious injury or death presented by that condition. Instead, it must be shown that the employer actually possessed such knowledge. Moreover, knowledge of the specific unsafe working condition alone is insufficient; rather, a defendant must also have realized the high degree of risk and strong probability of serious injury or death presented by the specific unsafe working condition.” Harbolt v. Steel of W. Va., Inc., 640 F. Supp. 2d 803, (S.D.W. Va. 2009). In the case of an employee's death, a personal representative of the decedent's estate may assert a deliberate intention claim against a decedent's employer on behalf of any persons identified in West Virginia Code § 55-7-6, so long as the decedent could have maintained the action against the employer by satisfying the deliberate intention statutory criteria. Murphy v. E. Am. Energy Corp., 680 S.E.2d 110 (W.Va. 2009).
  28. 28. 28  Employers are entitled to an offset for whatever sums have been paid to a claimant under workers' compensation benefits. This is generally the entirety of the claimant's medical bills, his or her lost wages (typically around 70%), and any disability payments. In cases where the injury is severe, permanent, and debilitating, a claimant can allege and demonstrate damages in the millions of dollars, which workers compensation does not pay, including pain and suffering, loss of household services, future lost wages and benefits until retirement age, loss of the capacity to enjoy life, costs for future medical services and life-care plans, and spousal loss of consortium.  As a practical matter, even when the hurdles to a deliberate intent action are explained, the jury will nonetheless tend towards employing a negligence standard in rendering its decision.  The immunity from liability extended to political subdivisions by West Virginia Code § 29-12A-5(a)(11) (1992) includes immunity from “deliberate intent” causes of action brought pursuant to West Virginia Code § 23-4-2(c)(2) (1994). Syllabus Point 4, Michael v. Marion Cty Bd. of Educ., 198 W.Va. 523, 482 S.E.2d 140 (1996). Recent Case Law – 2011 to the present Smith v. KWV Operations, LLC, U.S. Dist Lexis 18827 (S.D.W.Va. 2011) The United States District Court for the Southern District of West Virginia recently concluded that 28 U.S.C. § 1445(c) does not bar removal of deliberate intent actions to federal court. After the defendant employer removed the plaintiff employee's deliberate intent and loss of consortium action based on diversity jurisdiction, the employee sought remand on the basis that 28 U.S.C.S. § 1445(c) prohibited removal to federal court any civil action in state court arising under workers compensation laws. The District Court found that a West Virginia court’s interpretation of West Virginia Code § 23-4-2(d)(2) was not determinative of whether a deliberate intention claim arose under workmen's compensation laws for purposes of 28 U.S.C.S. § 1445(c). Blatt v. Steel of West Virginia, Inc., 2011 W.Va. LEXIS 289 (W.Va. 2011) This memorandum decision was decided under the new rules of Appellate Procedure. The plaintiff was hired as a production worker for defendant. Believing that a piece of metal fell into a “cyclodyne” machine, plaintiff made an effort to retrieve it. In so doing, his leg fell into a hole on the machine which caused him to suffer permanent injury. Plaintiff asserts that he was never properly trained to operate this machinery and that defendant knew the machine was dangerous. Defendant maintained that there was no reason plaintiff should be working in or around the “cyclodyne” machine, defendant had no reason to know plaintiff would be around the machine, and defendant had never received any complaints regarding the machine. On motion for summary judgment, the Circuit Court of Cabell County found for the defendant company on grounds that plaintiff did not satisfy the intentional exposure element of the deliberate intent statute. On appeal, the Supreme Court of Appeals of West Virginia affirmed the trial court’s reasoning. Unfortunately, because this was a memorandum decision under the new rules, the Court did not discuss the merits of the arguments or the reasoning behind the affirmation of the trial court’s ruling.
  29. 29. 29 Addair v. Litwar Processing Co., 2012 W. Va. LEXIS 12 (W.Va. 2012) In this memorandum decision, nine petitioners appealed an order of the Circuit Court of Wyoming County granting summary judgment to multiple employers in deliberate intent actions premised upon chemical exposure. The circuit court granted summary judgment on the ground of collateral estoppel because each of the plaintiff petitioners had previously filed a related workers’ compensation claim that had resulted in a final order finding that the claimant had not sustained a compensable workplace injury. The circuit court concluded that, because of the existence of a final adjudication finding no compensable injury with respect to each of the plaintiff petitioners, they each were estopped from re-litigating the issue and were, therefore, unable to prove a mandatory element of their deliberate intent claims. In lieu of addressing the issue of collateral estoppels, the Supreme Court of Appeals noted that the trial court had imposed a sanction upon the plaintiff petitioners that precluded them from presenting any expert witness in connection with their cases underlying the appeal. In order to prevail, the plaintiff petitioners must have been able to establish that they suffered “serious compensable injury or compensable death” and that such “serious compensable injury or compensable death” was “a direct and proximate result” of chemical exposure to which they were subjected in the course of their employment. In order to establish the element of causation, the Supreme Court of Appeals believed that expert testimony is necessary. In upholding the trial court’s ruling, the Supreme Court of Appeals held, “Because the plaintiff petitioners have been prohibited from presenting such evidence by virtue of sanctions imposed on them by the circuit court, they are unable, as a matter of law, to meet their burden of proof as to this element of their claim. This inability to make a sufficient showing on an essential element of their case, for which they bear the burden of proof, renders summary judgment proper.” Persinger v. Peabody Coal Company, 196 W. Va. 707 (1996) The Supreme Court of Appeals of West Virginia created a new cause of action for fraudulent misrepresentation, which takes place in the context of an employer’s defense of a worker’s compensation claim. While Persinger is not a new cause of action, the frequency with which plaintiffs’ attorneys in West Virginia have asserted the claim has recently increased. In Persinger, an employee was injured while driving a coal truck. The employee brought an action against the employer for knowingly filing a false statement with the West Virginia Workers' Compensation Fund in opposition to the employee's claim. The Supreme Court of Appeals held that a claimant could maintain the private cause of action for fraudulent misrepresentation against an employer for knowingly and intentionally filing a false statement. The Supreme Court of Appeals further held that the employee could maintain the action even though he or she was ultimately awarded workers’ compensation benefits. The rationale was that the employee was not attempting to recover damages for the initial workplace injury, but instead for the harm suffered from the fund originally denying benefits. Importantly, the Supreme Court of Appeals held that punitive damages and attorney's fees were recoverable. VII. Joint and Several Liability The law of joint and several liability in West Virginia is codified in West Virginia Code § 55 -7-24 and applies to causes of action that accrued on or after July 1, 2005. Under the law, if any defendant is found to be 30% or less at fault, then such defendant’s liability to the plaintiff will be several and not joint, which means that the defendant is only liable to the plaintiff for the damages attributable to the defendant. For example, if a particular defendant is found to be 20% at fault and the damages are determined to be $10,000.00, then that defendant is only liable to the plaintiff in the amount of $2,000.00 (subject to reallocation as discussed below).
  30. 30. 30 The exceptions to the new joint and several liability rule apply to those defendants who are determined by a jury to have: (1) Acted with intent to inflict injury or damage; (2) Acted in concert with other defendants as part of a common plan or design resulting in harm; (3) Negligently or willfully caused the unlawful emission or disposal or spillage of a toxic or hazardous substance; or (4) Manufactured or sold a defective product in which strict liability is imposed. If a claimant is unable through good faith efforts to collect from a liable defendant, the claimant may, not later than six months after the judgment becomes final through lapse of time for appeal or through exhaustion of appeal (whichever occurs later), request reallocation of any uncollected amount among the other parties to the suit. It is for the Court (not a jury) to decide whether all or a part of a defendant’s proportionate share is uncollectible and to reallocate the uncollected amount among the other parties based upon the percentages of fault at issue, which includes the plaintiff’s percentage if this plaintiff’s determined to be partially at fault. However, a court cannot reallocate to any defendant an uncollectable amount greater than that defendant’s percentage of fault multiplied by such uncollected amount. A defendant subject to reallocation still maintains any rights and obligations of indemnity and contribution which the defendant may maintain or owe as against any other party. An exception to reallocation is triggered when a defendant’s percentage of fault is equal to or less than the plaintiff’s percentage of fault or the percentage of fault of the defendant is less than 10%. In such a case, the defendant’s obligation to the plaintiff may not be increased by way of reallocation. It should be noted, however, that when the exception is applied to a particular defendant such that said defendant’s obligation to the plaintiff is not increased, the portion of the judgment which is not applied to the exempt defendant shall be reallocated to the other parties who are not exempt according to their respective percentage of fault. Under the Governmental Tort Claims Act the joint and several liability doctrine is modified. The court in assigning the total amount awarded as damages shall enter judgment of joint and several liability against every defendant who bears 25% or more of the negligence attributable to all defendants. W. Va. Code § 29- 12A-7(d). The judgment is several, but not joint, among all defendants who bear less than 25% of the negligence attributable to all defendants. Id. A defendant who is assessed joint and several liability is liable to each plaintiff for all or any part of the total dollar amount awarded regardless of the percentage of negligence attributable to him. W. Va. Code § 29-12A-7(e). A right of contribution exists in favor of each defendant who has paid to a plaintiff more than the percentage of the dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. Id. The total amount of recovery is limited to the amount paid by the defendant to a plaintiff in excess of the percentage of total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. Id. No right of contribution exists against a defendant who engages in a good faith settlement with the plaintiff prior to the jury’s report of its findings to the court or the court’s findings as to total dollar amount awarded as damages. Id. VIII. Collateral Source The West Virginia Supreme Court of Appeals has held that money a plaintiff has received from a collateral source is not admissible. Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986). The collateral source rule normally operates to preclude the offsetting of payments from health and accident companies and other collateral sources against the damages claimed by the injured party. Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584, 589-590 (1981). The Court held that “[t]he collateral source rule was
  31. 31. 31 established to prevent the defendant from taking advantage of payments received by the plaintiff as a result of his own contractual arrangements entirely independent of the defendant.” Id. at 590. The Court has applied the harmless error rule where evidence of a collateral source was introduced, but the jury found against the plaintiff on liability therefore it never addressed the issue of damages. Id. The West Virginia Supreme Court of Appeals has not specifically addressed the issue of write-downs or write-offs, however West Virginia law does not require that a plaintiff actually have paid medical expenses in order to recover them. Syllabus Point 14, Long v. Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975). Public entities, however, are granted greater leeway in collateral sources when it comes to temporary total disability benefits under the West Virginia Workers’ Compensation system. West Virginia Code § 23-4-1(a) sets forth that when an employee of the state and its political subdivisions, including: Counties; municipalities; cities; towns; any separate corporation or instrumentality established by one or more counties, cities or towns as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any agency or organization established by the Department of Mental Health for the provision of community health or mental retardation services and which is supported, in whole or in part, by state, county or municipal funds; board, agency, commission, department or spending unit, including any agency created by rule of the Supreme Court of Appeals, who have received personal injuries in the course of and resulting from their covered employment, the employees are ineligible to receive compensation while the employees are at the same time and for the same reason drawing sick leave benefits. State employees may collect sick leave benefits until receiving temporary total disability benefits. The employee may have sick leave benefits restored following the receipt of temporary total disability benefits by paying the employer the temporary total disability benefits received or an amount equal to the temporary total disability benefits received. IX. Procedural Strategies A. Offers of Judgments Either party may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If the offer is accepted the parties then file with the court a notice of acceptance with proof of service and the court shall direct entry of the judgment by the clerk. When there is a statutory provision that specifically creates a right to attorney fees and defines attorney’s fees as being in addition to, or separate and distinct from costs, the circuit court must determine attorney’s fees separately from the offer of judgment. When the offer of judgment does not explicitly provide that the amount of the offer is inclusive of costs and attorney fees, the circuit court then must determine costs and fees in addition to the amount of the offer of judgment. Therefore, it is imperative that an offer of judgment explicitly state that is inclusive of costs and attorney fees. If the offer is not accepted then it is considered withdrawn. Should the case proceed to trial and the judgment obtained by the opposing party is not more favorable the opposing party then bears the costs incurred following the making of the offer. The fact that an offer is made but not accepted, or accepted as part payment, does not preclude a subsequent offer.
  32. 32. 32 There is a difference in the West Virginia and Federal Rules of Civil Procedure for offers of judgment. In state court, an offer of judgment must be at any time more than 10 days before the trial begins. Under the Federal rules an offer of judgment must be made at least 14 days before the date set for trial. B. Third Party Practice West Virginia Rules of Civil Procedure Rule 13(a) requires that a pleading state as a counterclaim any claim which at the time of serving the pleading the pleader has against the opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claims and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. A defendant may bring a third-party complaint at any time after commencement of the action. W. Va. R. Civ. Pro. Rule 14(a). Leave of the court is not required if the third-party complaint is filed within ten (10) days after serving the original answer otherwise the party must obtain leave of court. Id. Under Rule 18 of the West Virginia Rules of Civil Procedure a party is permitted to assert a claim of relief as an original claim, counterclaim, cross-claim, or third-party claim, as the party has against an opposing party. Joinder is also permitted if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest, or (ii) leave any of the persons already parties subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. W. Va. R. Civ. Pro. Rule 19(a). When joinder is not feasible the court must determine whether to allow the action to proceed in the absence of that party or be dismissed, the absent person being considered indispensible. Id., Rule 19(b). A party may join an existing action as a plaintiff is they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. W. Va. R. Civ. Pro. Rule 20(a). Misjoinder of parties is not a ground for dismissal of the action and parties may be added or dropped by order of the court or on motion of any party or of its own initiative at any stage of the action and on such terms as are just. W. Va. R. Civ. Pro. Rule 21. When a party has a claim against the plaintiff he/she may be joined as a defendant and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. W. Va. R. Civ. Pro. Rule 22. X. Uninsured/Underinsured Motorist West Virginia uninsured and underinsured motorist coverage is controlled by statute found at West Virginia Code § 33-6-31. These two coverages are not the same, and have different laws applicable to each. Uninsured coverage is mandatory in West Virginia. Every motor vehicle liability insurance policy issued in this State must also contain uninsured motorist coverage. There are four possible scenarios as to how a vehicle may be “uninsured” by statute: 1. The tortfeasor may not have bodily injury liability insurance and property damage liability insurance both in the amounts specified by section two, article four, chapter seventeen-d of this code, as amended from time to time [currently $20,000 per person and $40,000 per occurrence for bodily injury claims, and $10,000 in property damage claims];
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