Who Goes on the Verdict Form: West Virginia’s Adoption of Modified Comparative Fault

October 2016
Ollie M. Harton, Kelly Calder Mowen
West Virginia

 

Over the last two years, the West Virginia Legislature has enacted broad-sweeping tort reform primarily designed to rein in historically high—and oftentimes seemingly unjustifiable—jury verdicts. The Legislature has created new statutes (for instance, enacting limitations on punitive damages) and eliminated old ones in its ongoing efforts to achieve this goal. One notable overhaul was the Legislature’s abrogation of West Virginia’s long-standing joint and several liability standard, which it replaced with modified comparative fault. W.Va. Code § 55-7-13a (2016).


Under modified comparative fault, a defendant’s liability is several only, meaning that a defendant’s liability generally is limited to the amount of damages equal to its percentage of fault, as determined by the factfinder, for the alleged harm. Id.; and § 55-7-13c. This is in contrast to West Virginia’s prior joint and several liability standard, which treated all defendants as joint tortfeasors and could result in a single defendant held individually liable for all of a plaintiff’s judgment irrespective of the amount of fault assessed to that defendant. Most importantly, modified comparative fault permits assessment of fault against nonparties to a lawsuit by the factfinder, unlike under the previous statutes, which primarily limited assignment of liability to the parties to the action only. This change represents an important shift in litigation in the Mountain State and a defendant who understands and follows the new statutes should benefit when the jury is charged. But, as reflected in the rules accompanying this new legislation, a defendant seeking to benefit from this standard must be proactive in identifying potential nonparty entities that may be liable for all or part of the harm caused and in building a related defense.

The nuts and bolts of comparative fault are fairly straightforward and the advantages for a defendant readily apparent. “Comparative fault” is statutorily defined as “the degree to which the fault of a person was a proximate cause of an alleged personal injury or death or damage to property, expressed as a percentage.” § 55-7-13a. A defendant’s liability, absent extraordinary circumstances, is limited to his comparative fault as determined by the factfinder. § 55-7-13c. In the event a plaintiff is found to be some degree at fault for his injuries, any recovery is reduced by the degree of fault assigned to him; moreover, if he is more than 50% at fault for his injuries he cannot recover from any party. Id. Finally, a plaintiff’s criminal conduct will bar his recovery as a matter of law if his actions constituted a felony or attempted felony and any alleged harm suffered was a proximate cause of the same. § 55-7-13d. 

West Virginia law previously permitted (in certain limited circumstances), so-called “empty chair” arguments that allowed a defendant to argue a nonparty was wholly or partially at fault for the plaintiff’s harm, but now—and critically— the new modified comparative fault scheme sets forth a process that allows a defendant to place that nonparty on the jury’s verdict form. Id.; and see Modular Bldg. Consultants of W.Va., Inc. v. Poerio, Inc., 235 W.Va. 474, 484, 774 S.E.2d 555, 565 (2015). However, a defendant cannot simply walk into the courtroom on the eve of trial expecting to point the finger at these nonparties. A defendant seeking to take advantage of this new provision must be diligent and file the appropriate notice as provided under W.Va. Code § 55-7-13d(a)(2) within 180 days of being served with the complaint and identify these liable (or partially liable) nonparties. §55-7-13d. This notice must identify the nonparty and his last known address, or the “best identification of the nonparty which is possible under the circumstances,” along with a statement setting forth the basis for belief as to the fault of the nonparty. Id. 

Relatedly, if a plaintiff has settled with a nonparty then the fault of that nonparty is considered, even if the nonparty was not identified on a defendant’s § 55-7-13d(a)(2) notice. Id. No assignment of fault against a nonparty may be used against that party, either to collect on a resulting judgment or in subsequent lawsuits. Id. Any recovery is reduced in proportion to the fault charged to a nonparty and also reduced in proportion to the fault assigned to a settling party or settling nonparty, instead of a dollar for dollar reduction based on settlement monies paid. Id. The burden of alleging and proving comparative fault remains on a defendant asserting that a nonparty was at fault to introduce evidence of the absent party’s liability. See id.; and see Syl. pt. 11, Modular Bldg. Consultants of W.Va., Inc., 235 W.Va. at 476, 774 S.E.2d at 558 (citing Syl. pt. 11, Doe v. Wal-Mart Stores, Inc., 210 W.Va. 664, 668, 558 S.E.2d 663, 667 (2001)). The degree of evidence sufficient for proving comparative fault under the new modified comparative fault statute has not been set forth in the statute or developed through case law. In assessing fault where there is more than one person or entity, special interrogatories are propounded to the jury (or, in the event of a bench trial, the judge will make findings) indicating a percentage of fault to assign each party and nonparty. § 55-713d. 

Absent limited circumstances delineated by statute, each defendant is only liable for the percentage of comparative fault assigned to it. § 55-7-13c. For instance, defendants may be found jointly liable if it is determined that they “consciously conspire[d] and deliberately pursue[d] a common plan or design to commit a tortious act or omission.” Id. Defendants may also be found jointly liable if their conduct constitutes “an illegal disposal of hazardous waste,” which conduct is a proximate cause of the damages suffered by the plaintiff. Id. Defendants determined jointly liable have a right of contribution against other defendants with whom it was found they acted in concert. Id. 

In addition a plaintiff who, through “good faith efforts,” is unable to collect on a judgment from a liable defendant may move the court for reallocation of any uncollectable amount among the other parties found to be liable within one year after the judgment becomes final. Id. There are, fortunately, exceptions to this exception: no defendant may ever be liable for any portion of a judgment allocated to an immune defendant or defendant whose liability is otherwise limited by law. Id. This could include, for example, a defendant/employer who is protected by the workers’ compensation exclusivity bar (assuming no deliberate intent claim has been raised). § 55-7-13c. Additionally, in reallocating fault, a plaintiff (if determined at fault) is included in the reallocation and no defendant with fault equal to or less than the plaintiff can have additional liability attributed to him. Id. Finally, the court cannot reallocate to any defendant an uncollectible amount greater than that defendant’s percentage of fault multiplied by the uncollectible amount. Id. For example, if a jury determined that five defendants, A, B, C, D, and E were each 20% at fault and awarded plaintiff F $100,000.00 in damages, then each defendant would be liable for $20,000.00. However, if defendant A was insolvent and plaintiff F could not collect, then the uncollected  $20,000.00, upon F’s motion, would be allocated among the remaining four defendants - $20,000 x .20, or $4000.00 to each remaining defendant. Modified comparative fault applies to all actions “arising or accruing” on or after May 25, 2015, while recent amendments to W.Va. Code § 55-7-13d apply to actions accruing on or after May 24, 2016. § 55-7-13d. 

While adoption of modified comparative fault was a step toward creating a predictable and consistent legal atmosphere in the Mountain State, there are aspects of this legislation that remain untested and could prove problematic for defendants who are parties to cases involving multiple litigants. On the other hand, there are ready and apparent advantages available to a defendant who establishes nonparty liability by demonstrating that part (or all) of the harm created was caused by nonparty entities. The implementation of this new legislation should be closely monitored to ensure that defendants sued in West Virginia are successfully able to navigate this ever-evolving legal landscape.

For similar guidance in other states, please refer to the following Who Goes on the Verdict Form publications: 

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