In 2015, the West Virginia legislature with HB 2002 abolished joint liability and established a new comparative fault system for determining the amount of damages for negligence-based causes of action. In cases where plaintiffs seek damages for personal injury, property damage, or wrongful death, fault will be allocated by the fact-finder to both parties and nonparties in direct proportion to their percentage of fault. House Bill 2002 is applicable to causes of action arising on or after May 25, 2015. It does not apply to the Governmental Tort Claims and Insurance Reform Act, the Medical Professional Liability Act, and the Uniform Commercial Code.
West Virginia adopted the modified comparative fault standard for computation of allocation of fault. Under the new law, contained in the added section, 55-7-13(a)-(d). “Any fault chargeable to the plaintiff shall not bar recovery by the plaintiff unless the plaintiff’s fault is greater than the combined fault of all other persons responsible for the total amount of damages, if any, to be awarded. If the plaintiff’s fault is less than the combined fault of all other persons, the plaintiff’s recovery shall be reduced in proportion to the plaintiff’s degree of fault. W. Va. Code § 55-7-13a to § 55-7-13d. A plaintiff will be barred from recovery if found to be more than 50% at fault. Previously, a plaintiff was barred from recovery if found to be 50% or more at fault. If less than 50% at fault, recovery will be reduced in proportion to any fault allocated.
The West Virginia Legislature all but abolished joint liability, where each defendant is liable up to the full amount of a judgment, and adopted several liability, in which each defendant will only be liable for the amount of compensatory damages proportionate to his percentage of fault. Joint liability is still applicable when a conscious conspiracy exists between two or more defendants.
Other key parts of the act include the provision stating that burden of proof for establishing comparative fault is on the party seeking to establish it. Also, the law contains a provision for re-allocation of the proportionate shares of the judgment by the trial court upon the plaintiff’s timely motion (within one year after final judgment ) alleging a partially uncollectible verdict.