May 13, 2015

2015 Legislative Session Overview

The 2015 West Virginia Legislative Session recently concluded. Multiple bills were passed during the session that will significantly impact the future of West Virginia’s legal system. These newly enacted laws will bring about much needed change that will benefit businesses, insurers, and property owners operating in the state.

  • Comparative Fault Bill

The most significant of all the measures passed this session is the new comparative fault bill which abolishes joint liability. Under West Virginia’s existing joint liability law, a defendant could be held liable to a plaintiff for damages larger than their determined share, including all of a plaintiff’s damages, if that defendant was found to be 30% or more at fault and the other defendants could not pay their share of the damages.

Joint liability also applied to defendants who acted with the intention of inflicting injury or damage, who acted in concert with another person as part of a common plan or design resulting in harm, who negligently or willfully caused the unlawful emission, disposal or spillage of a toxic or hazardous substance, or any party strictly liable for the manufacture and sale of a defective product.

The new comparative fault bill eliminates joint liability and ensures a defendant will only be responsible for their share of the plaintiff’s damages based upon their percentage of fault. Joint liability may still be imposed on two or more defendants when those parties consciously conspire to commit a tortious act or omission. Further, joint liability may also be imposed when a defendant was operating a vehicle under the influence, when a defendant’s actions or omissions constitute criminal conduct, or when a defendant was engaged in an illegal disposal of hazardous waste.

Under the new bill, a plaintiff unable to collect from one defendant despite good faith efforts to recover may, at least one year after the judgment becomes final, move the court for reallocation of any uncollectible amount among the other parties found liable. In that instance, the court can only reallocate the portion of the uncollectable amount equal to or less than a defendant’s respective fault percentage. If a defendant’s fault percentage is equal to or less than the plaintiff’s, no reallocation is awarded.

The new comparative fault bill becomes effective May 25, 2015.

  • Open and Obvious Bill

In November 2013, the West Virginia Supreme Court eliminated the “open and obvious doctrine” as it applied to premises liability with its decision in Hersh v. E-T Enterprises, et. al. The “open and obvious doctrine” is a common-law principle that bars a plaintiff from recovering any damages from a premises owner or possessor for an injury that was caused by an “open and obvious” hazard located on the property so long as the hazard was known or could have been known to a reasonable person. Under the doctrine, a premises owner had no duty to eliminate open and obvious hazards but only a duty to correct hidden dangers. With the Hersh decision, the Supreme Court established that a property owner had an affirmative duty to remedy the risk posed by any hazard, including those open, obvious, and reasonably apparent, if it was reasonably foreseeable that the hazard may cause harm to someone.

Senate Bill 13 reinstated and codified the “open and obvious” doctrine. As a result, owners and possessors of property in West Virginia no longer owe a duty of care to protect others against open, obvious, and reasonably apparent dangers and cannot be held liable for damages for any injuries as a result of such dangers.

The bill became effective February 18, 2015.

  • Trespass Bill

On a similar note, Senate Bill 3 enacted a new statute which further limits the potential liability of a possessor or owner of property. The newly enacted statute establishes that an owner, lessee, or other lawful occupant does not owe a duty of care to anyone trespassing upon their land. A property owner does have a duty to refrain from willfully or wantonly causing injury to a trespasser. The statute also permits a property owner to use justifiable force to repel a criminal trespasser from their land.

The bill and new statute became effective April 29, 2015.

  • Medical Professional Liability Act

The legislature took the opportunity to amend the existing Medical Professional Liability Act (MPLA). Senate Bill 6 accomplishes three important items. First, it amends several of the existing definitions under the MLPA to broaden the scope and coverage of the MPLA to include additional health care providers and facilities. Secondly, it modifies the qualifications for competency of an expert witness in medical liability actions. Lastly, it modifies both the availability and maximum limits of certain recoverable damages.

The expanded “health care” definition now includes any person who is supervised or acting under the direction of a health care provider or licensed professional including staff, medical transport personnel, custodial care, infection control, positioning, hydration, nutrition, and similar patient services.

Also expanded under the bill is the “health care facility” definition which adds all of the following: end-stage renal disease facility, home health agency, child welfare agency, group residential facility, behavioral health care facility or comprehensive community mental health center, intellectual/development disability center or program, or other ambulatory health care facility.

Definition of “health care providers” was expanded to include: physician assistant, advance practice registered nurse, health care facility, speech-language pathologist and audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical service personnel, any person taking actions or providing service or treatment in furtherance of a physician’s or health care facility’s care plan, medical diagnosis or treatment, and any officer, agent, or employee of a health care provider acting in the course and scope of their employment.

By expanding the above mentioned definitions, the legislature effectively ensured those entities and professions fall within the scope of the MPLA.

The definition of “medical professional liability” was modified to include other claims that are related or contemporaneous to the alleged tort or breach of contract. The intent behind the modification is to bring any related claims an injured plaintiff may have into the purview of the MLPA when the plaintiff has asserted a medical liability or malpractice claim.

Typically, the collateral source doctrine precludes a plaintiff’s damage award from being reduced by payments made by other sources. In West Virginia, plaintiffs, exploiting the collateral source doctrine, were often recovering the full billed amount for medical treatment even though the medical provider accepted a reduced amount as payment in full. In many cases, this resulted in increased damage awards, where a plaintiff would recover “phantom” damages. The new revised definition of collateral source now excludes any amount a health care provider, organization, partnership or group agrees to reduce, discount or write-off of a medical bill. Under the new definition, a healthcare provider could introduce evidence of medical bill discounts or write offs in an effort to reduce a plaintiff’s damage award.

Under the existing MPLA, a plaintiff could establish that a defendant failed to meet the applicable standard of care by offering testimony from one or more “knowledgeable, competent expert witnesses.” For an expert to qualify as knowledgeable and competent, they must satisfy four criteria under the MPLA:

  1. The opinion being proffered as evidence must actually be held by the expert witness;
  2. The opinion can be testified to with reasonable medical probability;
  3. The expert witness possesses professional knowledge and expertise, coupled with knowledge of the applicable standard of care; and
  4. The expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state.

The legislature has added a fifth requirement to the criteria. The expert witnesses’ opinion must now also be grounded in scientifically valid peer-reviewed studies, if available.

The most noticeable change with the revised MPLA bill is the modifications regarding a plaintiff’s ability to recover damages and the maximum amounts recoverable. The plaintiff’s compensatory damages for noneconomic losses are now capped at $250,000 for each occurrence. However, this is not a “hard cap” as there are several limited circumstances where a plaintiff may recover compensatory damages for noneconomic losses in excess of the $250,000 cap. Those limited circumstances include: wrongful death, permanent and substantial physical deformity, and permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities. In those three limited circumstances, the noneconomic loss cap increases to $500,000. Further, if a defendant does not maintain a medical professional liability insurance policy of at least one million dollars per occurrence, the noneconomic damage caps established under the revised MPLA would be inapplicable and, as a result, the defendant could be held liable for noneconomic damages greater than the established limits.

The new amendments to MPLA will apply to all causes of action alleging medical malpractice which are filed on or after July 1, 2015.

  • Deliberate Intent Bill

Much to the dismay of plaintiff attorneys throughout West Virginia, the legislature used this past session as an opportunity to clarify and focus the state’s deliberate intent statute back to its originally created purpose.

Under the existing law, an employer can require an employee injured on the job to undergo a drug test if the employer had objective suspicion that the employee was intoxicated. The new revisions now establish that if an employee is deemed intoxicated, the intoxication is the proximate cause of the injury. Intoxication can be determined by one of the following methods:

  1. If a blood test is administered within two hours of the accident and evidence that there was, at the time, more than five hundredths of one percent, by weight, of alcohol in the employee’s blood; or
  2. If there was, at the time of the blood test, evidence of either on or off the job use of a non-prescribed controlled substance.

An injured employee alleging a deliberate intent claim against an employer can prove their claims in one of two ways. The first way is for the injured employee to prove that the employer acted with a “consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee.” This requires showing actual, specific intention on the part of the employer and cannot be satisfied by conduct which produces a result that was not specifically intended. Negligence, no matter how gross or aggravated, or willful, wanton, or reckless, does not satisfy this requirement. This is a difficult burden for a plaintiff to meet and, as a result, is seldom used by plaintiffs. The second and more popular way of proving a deliberate intent claim requires a finding of five specific elements at trial. Those elements are:

  1. That a specific unsafe working condition existed in the workplace that created a high degree of risk and strong probability of serious injury or death;
  2. That the employer, prior to injury, had actual knowledge of the specific unsafe working condition and of the high degree of risk and strong probability of injury or death presented by it;
  3. That the unsafe working condition was a violation of a state or federal safety statute, rule or regulation, or a commonly accepted safety standard within the industry or business of the employer;
  4. That the employer intentionally exposed the employee to the specific unsafe working condition; and
  5. That the employee suffered serious compensable injury or death as a result of the unsafe working condition. 

New language contained in the revised statute requires an employee or their representative or dependent, when permitted, to have filed a claim for workers compensation benefits prior to the filing of the deliberate intent action. This requirement is only excusable for good cause. Additionally, under the new revisions, if a party wishes to file a deliberate intent claim under the five-part analysis, it must serve along with the complaint a verified statement from a person with knowledge and expertise on the workplace safety statutes, rules, regulations and consensus industry safety standards specifically applicable to the industry and workplace involved in the employee’s injury, setting forth opinions and information on:

  1. The person’s knowledge and expertise of the applicable statutes, rules, regulations or standards;
  2. The specific unsafe working condition(s) that were the cause of the injury that is the basis of the complaint;
  3. The specific statutes, rules, regulations, or industry standards violated by the employer.

It should be noted that the required verified statement is not admissible at trial.

The legislature also set criteria for establishing an employer’s actual knowledge at trial. The new language of the statute states actual knowledge must be specifically proven by the employee and shall not be presumed. Further, the actual knowledge requirement cannot be established by constructive knowledge or by proof of what an employee’s immediate supervisor or management should have known had they exercised reasonable care. If an employee wishes to satisfy the actual knowledge requirement by proving his supervisor or management had knowledge of prior accidents, safety complaints, or by citations by regulatory agencies, the employee must prove these instances using documentary or other credible evidence. An employee may prove actual knowledge by producing evidence of intentional and deliberate failure to conduct an inspection, audit or assessment required by state or federal statue or regulation and such inspection, audit or assessment is specifically intended to identify each alleged specific unsafe working condition.

The revised statute clarifies and provides additional insight into the third element regarding violations of rules, regulations or industry standards. If an employee alleges the specific unsafe working condition complained about is a violation of a commonly accepted and well-known safety standard, the safety standard must be a consensus written rule or standard promulgated by the industry or business of the employer, such as an organization comprising industry members, not any state or federal body. If the unsafe working condition is in violation of a state or federal rule, statute or regulation, that rule, regulation, or statute must 1) be specifically applicable to the work and working condition involved; 2) must be intended to address the specific hazard(s) presented by the alleged unsafe working condition. Whether any such state or federal safety statute, rule or regulation is applicable is a matter of law for a judge to determine.

One major exception regarding industry safety standards involves the National Fire Protection Association Codes and Standards or any other industry standards for Volunteer Fire Departments, Municipal Fire Departments and Emergency Medical Response Personnel. These standards are not considered an unsafe working condition as long as the Volunteer Fire Departments, Municipal Fire Departments and Emergency Medical Response Personnel have followed the Rules that have been promulgated by the Fire Commission.

As for the serious compensable injury requirement, the legislature recognized four methods for establishing such an injury. The first method is by showing the sustained injury results in a permanent physical or combination of physical and psychological injury rated at a total whole person impairment level of at least 13% as a final award in the employee’s workers’ compensation claim; and the injury causes permanent serious disfigurement, permanent loss or significant impairment of function of any bodily organ, function or systems, or result in objectively verifiable bilater or multi-level dermatomal radiculopathy; and is not a physical injury that has no objective medical evidence to support a diagnosis and it is shown that the injury is independent of any preexisting impairment. The second method is by producing a written certification by a licensed physician that the employee is suffering from an injury or condition that is likely to result in death within 18 months or less from the date of the filing of the complaint. The third method for establishing a serious compensable injury, in the event that no impairment rating is established, is by showing that the injury meets the following definition: the injury causes permanent serious disfigurement, permanent loss or significant impairment of function of any bodily organ, function or systems, or result in objectively verifiable bilateral or multi-level dermatomal radiculopathy; and is not a physical injury that has no objective medical evidence to support a diagnosis.

The fourth and final method for establishing a compensable injury arises only when the employee is alleging suffering from an occupational pneumoconiosis. To establish occupational pneumoconiosis, the employee must submit written certification by a board certified pulmonologist that the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis and that the occupation pneumoconiosis has resulted in pulmonary impairment as measured by the standards or methods utilized by the West Virginia Occupational Pneumoconiosis Board of a least 15% as confirmed by valid and reproducible ventilator testing. The certifying pulmonologist must disclose all evidence upon which the written certification is based, including, but not limited to, all radiographic, pathologic or other diagnostic test results that were reviewed. Any cause of action under this clause must be filed within one year of the date the employee meets the requirements of the clause.

The revised statute also establishes a new employer right when faced with a deliberate intent claim. An employer may now request bifurcation of discovery in any action brought under the five element analysis. With discovery bifurcation, discovery on liability is completed before discovery related to alleged damages is conducted. The likely intent behind this new bifurcation language is to reduce litigation costs associated with extensive discovery in the event a plaintiff cannot prove all of the necessary liability elements. The new revisions also establish a venue provision. Under the new venue provision, a deliberate intent action can be brought either in the county where the alleged injury occurred or in the county where the employer’s principal place of business is located.

The revised amended statute applies to all injuries on or after July 1, 2015, and does not affect the rights of a party to bring an action for any incident which arose or accrued prior to the effective date of the bill.

  • Punitive Damages Limit

With Senate Bill No. 421, the legislature enacted a statute that establishes when punitive damages may be awarded in civil actions and places a limitation on the amount of punitive damages recoverable by a plaintiff. Under the newly created statute, an award of punitive damages may only occur if a plaintiff establishes, by clear and convincing evidence, that the defendant either acted with actual malice toward the plaintiff causing injury or with a conscious, reckless and outrageous indifference to the health, safety and welfare of others. Any punitive damage award is capped at either four times the compensatory damages sustained or $500,000, whichever is greater.

In any action involving punitive damages, a defendant can request bifurcation of the trial. If bifurcation is granted, the trial will be conducted in two stages. The first stage will determine liability and compensatory damages, if any. If compensatory damages are found, the trial court will then determine if sufficient evidence exists for the consideration of punitive damages. If the trial court determines sufficient evidence does exist, the trial would proceed to stage two. During stage two, the same jury would consider and determine if punitive damages should be awarded. If a jury returns a punitive damage award in an amount larger than the prescribed limits under the statute, the trial court is required to reduce the award to comply with the limitations set forth in the statute.

Senate Bill No. 421 passed on March 10, 2015, and is effective 90 days after its passage.

  • Employee’s Duty to Mitigate Damages

With the passage of Senate Bill No. 344, employees alleging a wrongful employment action against an employer now have an affirmative, statutory duty to mitigate both past and future lost wages. Unmitigated or flat rate back pay or future pay awards are no longer recoverable by an employee in employment cases. Any back pay award must be reduced by either the amount of interim earnings the employee earned or by the amount the employee could have earned had the employee undertaken reasonable diligence in obtaining work. The defendant has the burden of proving lack of a reasonable diligence.

Senate Bill No. 344 passed on March 10, 2015, and the new statutory duty becomes effective 90 days after its passage.

What It Means to You

While the newly enacted and revised statutes are a significant step towards tort reform in West Virginia, the true impact of these laws remains to be seen. If you have any questions or would like to discuss the impact the recent legislation may have on your business, contact your local Cipriani & Werner West Virginia office. If you know of anyone who might be interested in this update or similar future updates, please forward their email address to Cipriani & Werner so that we might include them on future updates. Please share this information with anyone whom you believe might be interested.