Joint and several liability was abolished in West Virginia with the passage of West Virginia Code §§ 55-7-13a-d, which adopted the standard of “modified comparative fault.” See Jackson v. Brown, 239 W. Va. 316, 321, 801 S.E.2d 194, 199, n. 6 (2017); see also Travelers Prop. Cas. Co. of Am. v. Mountaineer Gas Co., No. 2:15-CV-07959, 2017 WL 116294, at *2, n.3 (S.D.W. Va. Jan. 11, 2017). Specifically, the new statute addressing liability in a negligence claim provides that liability for all compensatory damages shall be only several, and not joint, liability. W. Va. Code § 55-7-13c(a). However, a plaintiff can establish joint and several liability when a conscious conspiracy exists between two or more defendants. Furthermore, joint and several liability will apply to a defendant when his or her actions involve alcohol or drug-influenced driving, criminal conduct, or alleged disposal of hazardous waste, which are proximate causes of the damages alleged by the plaintiff.
If a plaintiff is unable to collect from a liable defendant through good faith efforts, the plaintiff may, not one year after judgment becomes final, move the court for the reallocation of any uncollectible amount among the other parties found to be liable. The court may not reallocate to any defendant an uncollectible amount greater than that defendant’s percentage of fault multiplied by the uncollectible amount, and there shall be no reallocation against a defendant whose percentage of fault is equal to or less than the plaintiff’s percentage of fault.
Another important concept addressed in the new statutory scheme is that of how liability is to be determined by the jury. Specifically, the new statute provides that liability is to be assessed against all plaintiffs, defendants, and nonparties. Thus, the “empty chair” argument seems to have been codified and available for all defendants. This will undoubtedly place pressure on plaintiffs to ensure that all potential defendants are joined in a lawsuit instead of simply choosing the defendants with the perceived “deeper pockets,” which the old statutory scheme permitted.
Finally, the new statute also changes the percentage of the plaintiff’s fault that precludes recovery. The new statute provides that a plaintiff will be barred from recovery if found to be more than 50% at fault. Under the old statutory scheme, a plaintiff was barred from recovery if found to be 50% or more at fault. Thus, potential plaintiffs may still be able to collect a judgment even if their liability is equal to that of the combined fault of the defendant(s).
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