2015 Changes in Joint and Several Liability Standard and Comparative Fault, Contribution and Empty Chair Defense in West Virginia

November 19, 2015

A 2015 Legislative Recap

A) Joint and Several Liability
In 2015, West Virginia adopted comparative fault and abolished joint and several liability. West Virginia Governor Earl Ray Tomblin (D) signed HB 2002 into law, thus changing the state to one utilizing the modified comparative fault standard and no longer the joint and several liability standard for computation of allocation of fault. Sections 55-7-13 and 55-7-24 of the old West Virginia Code were repealed, and four new sections added 55-7-13a–d. The law is effective from May 25, 2015.

The Key Provisions in the Law 
The new code sections 55-7-13(a)—(d) provide:

  • The allocation of damages applicable to each entity is to be in direct proportion to that entity's percentage of fault (55-7-13a(b));

  • The total of the percentages of fault allocated by the trier of fact with respect to a particular incident or injury must equal either zero percent or one hundred percent (55-7-13a(c));

  • Liability for all compensatory damages shall be only several, and not joint (55-7-13c(a));

  • Joint liability is applicable where conscious conspiracy exists between two or more defendants, and parties held jointly liable have the right of contribution from defendants that acted in concert (55-7-13c(a));

  • Method of computation of damages is set forth in 55-7-13c ("multiply the total amount of compensatory damages recoverable by plaintiff by the percentage of each defendant's fault and, subject to subsection (d) of this section, that amount shall be the maximum recoverable from that defendant." (55-7-13c(b));

  • Notwithstanding 55-7-13c(b), "if a plaintiff through good faith efforts is unable to collect from a liable defendant, the plaintiff may, not later than one year after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later, move for reallocation of any uncollectible amount among the other" liable parties (55-7-3c(d));

  • "Upon filing of the motion, the court shall determine whether all or part of a defendant's proportionate share of the verdict is uncollectible from that defendant and shall reallocate the uncollectible amount among the other parties found to be liable, including a plaintiff at fault, according to percentages of fault" (55-7-13c(d)(1));

  • "[T]he unit may not allocate to any defendant an uncollectible amount greater than that defendant's percentage of fault multiplied by the uncollectible amount." (55-7-13c(d)(1));

  • There will be no re-allocation against a defendant whose percentage of fault is equal to or less than the plaintiff's percentage of fault (55-7-13c(d)(1));

  • Joint and several liability also applies to a defendant whose acts and omissions are: 1) alcohol or drug influenced driving, 2) criminal conduct and 3) alleged disposal of hazardous waste (55-7-13c(h)(i)–(3));

  • Nonparties are to be included in the consideration of allocation of fault for the harm (55-7-13d(a)(1) ("In assessing percentages of fault, the trier of fact shall consider the fault of all persons who contributed to the alleged damages regardless of whether the person was or could have been named as a party to the suit.");

  • Fault of a nonparty is considered if i) "plaintiff entered into a settlement agreement with the nonparty" or ii) "if a defending party gives notice no later than 180 days after service of process that a nonparty was wholly or partially at fault. Notice shall be filed with the court and served upon all parties to the action designating the nonparty and setting forth the nonparty's name and last-known address or the bet identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault." 55-7-13d(a)(2));

  • "In all instances where a nonparty is assessed a percentage of fault, any recovery by a plaintiff shall be reduced in proportion to the percentage of fault chargeable to such nonparty. Where a plaintiff has settled with a party or nonparty before verdict, that plaintiff's recovery will be reduced in proportion to the percentage of fault assigned to the settling party or nonparty." 55-7-13d(a)(3)); and

  • Burden of proof for establishing comparative fault is on the party seeking to do so (55-7-13d(d));

  • Applicable to all actions arising or accruing on or after effective date (May 25, 2015). 

B) Extinguishment of Contribution Claim
In the decision of Modular Bldg. Consultants of W. Va. Inc. v. Poerio, Inc., 774 S.E.2d 555 (W. Va. 2015), the Court held that where a tortfeasor settled with the injured plaintiff and obtains a release for a joint tortfeasor, the release preserves the settling tortfeasor's right of contribution against the released joint tortfeasor, noting that "[n]o right of contribution exists against any defendant who entered into 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 the total dollar amount awarded as to damages."

  • In Modular, the injured plaintiff had not sued the non-settling defendant directly and the statute of limitations had run as against the non-settling defendant. The Modular court noted that such a scenario "has been found by an 'overwhelming majority' of other courts to be of no moment to this analysis. The rationale is typically that the contribution plaintiff should not be hamstrung by the underlying plaintiff's lack of diligence: Plaintiff's claim should not be compromised merely because the underlying claimant failed to comply with a statute of limitations as to the contribution defendant." 

  • Thus, Modular held "that where a tortfeasor settles with an injured plaintiff and obtains a release for a joint tortfeasor, such release preserves the settling tortfeasor's right of contribution against the released joint tortfeasor."

C) Empty Chair Issues

  • The Modular court clarified that "there is no per se ban on 'empty chair' arguments in West Virginia, and also pointed out that in Doe v. Wal-Mart Stores, Inc., 210 W. Va. 664, 558 S.E.2d 663 (2001), the Court held that '[i]t is improper for counsel to make arguments to the jury regarding party's omission from a lawsuit or suggesting that the absent party is solely responsible for the plaintiff's injury where the evidence establishing the absent party's liability has not been fully developed.' (emphasis added). There has been little discussion of what level of evidentiary development is necessary to invoke this exception."