Can I use a Maryland lawyer for an accident that happened in West Virginia?

Yes. If you live in Maryland but were in an accident while you were West Virginia, The Law Office of Marc Atas and Associates will represent you for your personal injury, car accident, truck accident, automobile accident, and property damage claims. While we are only licensed to practice law in the State of Maryland, we can do the following legal activities on your behalf. The Law Office of Marc Atas and Associates can resolve your car damage claim, diminished value of car claim, make sure you receive timely medical treatment, aid the insurance company in accepting liability, take statements from witnesses, obtain police reports and finally attempt to settle your claim. If we are unable to settle your claim, we will locate counsel in the appropriate state to file suit and go to court on your behalf. The attorney fee arrangement will remain the same even if additional counsel is necessary and will not result in any additional fee. The personal injury, car accident, truck accident, and automobile accident laws in West Virginia are complicated. I have outlined the basic laws that apply when involved in personal injury, car accident, truck accident, or automobile accident in West Virginia.

West Virginia

Negligence / Personal Injury

2 Years with Discovery Rule.

Wrongful Death

2 Years

Medical Malpractice

2 Years with Discovery Rule but no more than 10 years from date of occurrence. Minors: under 10 have 2 years from injury or age 12, whichever is longer.

Malpractice (Other Professions)

Years

Wrongful Death

The statute of limitations for a wrongful death action is two years from the date of death of such deceased person. See, W. Va. Code § 55-7-6(d).

Fraud

The statute of limitations for an action for fraud in West Virginia is two years from the date of the fraud or misrepresentation. See, W. Va. Code § 55-2-12. However, the West Virginia Supreme Court of Appeals has held that the discovery rule applies such that the statute of limitations for a claim for an action for fraud does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact and should be answered by the jury. See, Stemple v. Dobson 184 W. Va. 317, 400 S.E.2d 561 (1990).

Products Liability

2 Years with Discovery Rule.

Intentional Torts

Municipal Liability/Sovereign Immunity

Not waived but held inapplicable to municipalities, counties, and board of education and state with liability insurance. Damages recoverable up to amount of insurance. 6. Claims Against the State of West Virginia and Political Subdivisions (West Virginia Governmental Tort Claims and Insurance Reform Act)

West Virginia has enacted a statutory scheme to control actions brought against the State and its political subdivisions. See W. Va. Code § 29-12A-1 et seq. The statute of limitation for bringing an action against the State and/or a political subdivision is two years after the cause of action arose. See, W. Va. Code § 29-12A-6(a). Moreover, a cause of action for an injury to a minor, brought by or on behalf of a minor who was under the age of ten years at the time of injury, shall be commenced within two years after the cause of action arose or after the injury, death or loss was discovered or reasonably should have been discovered, whichever last occurs, or prior to the minor’s twelfth birthday, whichever provides the longer period. See, W. Va. Code § 29-12A-6(b). The Act further provides that the foregoing periods of limitations shall be tolled for any period during which the political subdivision or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury. See, W. Va. Code § 29-12A-6(c).

Tolling the Statute of Limitations

The running of the statute of limitations period for any given action may be tolled, or suspended, in certain special circumstances. These include actions where: the claimant is an infant; the claimant is incapacitated; the claimant is incarcerated; or the claimant dies before the end of the statute of limitations period. See, W. Va. Code § 55-2-15.

Discovery Rule

Standard rule applies except see medical malpractice above.

Comparative Negligence

Applies, except if plaintiff is 50% or more responsible. B. Contributory Negligence

West Virginia is a “modified comparative negligence” jurisdiction. Therefore, a plaintiff can recover as long as the plaintiff’s own negligence does not equal or exceed the combined negligence of the other parties involved in the accident. Conversely, a plaintiff may not recover if his or her negligence exceeds or equals the combined negligence of the other parties involved in the accident. See, Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S. E.2d 879 (1979). In order to prove the plaintiff’s comparative contributory negligence, the evidence must show that the plaintiff’s conduct did not conform to the standard of what a reasonable person of like age, intelligence, and experience would do under the circumstances for his own safety and protection. The burden is on the defendant to prove plaintiff’s comparative contributory negligence by a preponderance of the evidence standard.

A child under the age of 7 is conclusively presumed to be incapable of comparative contributory negligence. The presumption may be rebutted for children between the ages of 7 and 14 (burden falls to defendant), and children

over the age of 14 are rebuttably presumed to be capable of comparable contributory negligence (burden falls to plaintiff). Some plaintiffs are partly responsible for the accidents in which they were involved. If this has happened to you, you probably will still be able to recover some compensation for your injuries. West Virginia follows the comparative negligence rule meaning that unless you and the other driver were equally at fault (50-50), or you were more at fault, you can still recover some damages. The overall award you get simply will be adjusted by your percentage of fault. If there is more than one defendant, fault will be apportioned among all of the drivers involved.

For example, if your damages total $60,000, and the jury determines that you were 10% at fault, the award would be reduced by $6,000, for a total of $54,000. However, if you were 60% at fault, you likely would not recover anything at all from other at-fault parties, under West Virginia’s shared fault rules.

Assumption of the Risk

As a “modified comparative negligence” jurisdiction, West Virginia has adopted the rule of comparative assumption of risk. Specifically, a plaintiff is not barred from recovery by the doctrine of comparative assumption of risk unless his or her degree of fault arising therefrom equals or exceeds the combined fault of the other parties to the accident. See, King v. Kayak Mfg Corp., 182 W. Va. 276, 387 S.E.2d 511 (1989). Moreover, comparative assumption of risk still follows the tradition formulation of the rule which requires the existence of a factual situation in which the act of the defendant alone creates the danger and causes the injury and the plaintiff voluntarily exposes himself to the danger with full knowledge and appreciation of its existence. See, Hollen v. Linger, 151 W. Va. 255, 151 S.E.2d 330 (1966).

Comparative assumption of risk is a corollary doctrine to the comparative contributory negligence defense, and the distinctions between the two generally depend upon the conduct and intent of the plaintiff. The West Virginia Supreme Court of Appeals has delineated the two by stating that contributory negligence and assumption of risk are not identical. The essence of contributory negligence is carelessness; of assumption of risk, venturousness. Knowledge and appreciation of the danger are necessary elements of assumption of risk. Failure to use due care under the circumstances constitutes the element of contributory negligence. See, Spurlin v. Nardo, 145 W. Va. 408, 114 S.E.2d 913 (1960).

. Last Clear Chance

The last clear chance doctrine is effectively a plaintiff’s defense to a defendant’s claim of contributory negligence. Typically, if the opportunity to avoid the accident is available to a plaintiff as to a defendant, then the plaintiff’s negligence is a proximate cause rather than a remote cause, and bars recovery. However, with the adoption of comparative negligence in West Virginia, the last clear chance doctrine has been abolished in West Virginia. The West Virginia Supreme Court of Appeals has held that since the adoption of comparative negligence, the historical reason for the doctrine of last clear chance no longer exists. Furthermore, because of the doctrine’s interrelationship with the issue of proximate cause and because of the confusion surrounding the application of the doctrine, we believe the better course would be to abolish the use of the doctrine of last clear chance for the plaintiff. See, Ratliff v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981).

Charitable Immunity

Abolished-4. Charitable Immunity / Good Samaritan Doctrine

There are several statutes in West Virginia that afford immunity from civil liability to individuals relative to aid and services rendered. Specifically, no person, including a person licensed to practice medicine or dentistry who, in good faith, renders emergency care at the scene of an accident or to a victim at the scene of a crime, without remuneration, shall be liable for any civil damages as the result of any act or omission in rendering such emergency care. See, W. Va. Code § 55-7-15. Likewise, any person licensed to practice medicine and surgery who acting in the capacity of a volunteer team physician at an athletic event sponsored by a public or private elementary or secondary school who gratuitously and in good faith prior to the athletic event agrees to render emergency care or treatment to any participant during such event in connection with an emergency arising during or as the result of such event, without objection of such participant, shall not be held liable for any civil damages as a result of such care or treatment, or as a result of any act or failure to act in providing or arranging further medical treatment, to an extent greater than the applicable limits or his or her professional liability policy when such care or treatment was rendered in accordance with the acceptable standard or care; provided, this limitation of liability shall not apply to acts or omissions constituting gross negligence. See, W. Va. Code § 55-7-19.

Charitable immunity for hospitals rendering gratuitous aid and services to patients has been abolished in West Virginia. See, Adkins v. St. Francis Hospital, 149 W. Va. 705, 143 S.E.2d 154 (1965). Nonprofit organizations arranging passage on excursion trains shall not be liable for personal injury, wrongful death or property damage arising from the acts or omissions of the regulated carrier or governmental entity so long as the role of the not for profit is limited to arranging for persons or groups of persons to participate in the excursion and providing tour information regarding the scenic, historic or educational qualities of the excursion area. See W. Va. Code § 55-7-20.

Disabilities

SOL runs after disability ends. Infants (18th birthday). Maximum 20 year toll.

Punitive Damages

Allowed where injury is inflicted intentionally or with malice, willfulness or wanton disregard of plaintiff’s rights.

No-Fault Insurance

None-. No Personal Injury Protection Coverage in West Virginia

In West Virginia, there is no PIP (personal injury protection) coverage as there is in other jurisdictions. However, West Virginia permits, but does not require, another similar type of coverage for the payment of medical expenses incurred by the occupants of a vehicle, commonly referred to as MEDPAY. This is elective coverage that pays regardless of fault. It is not uncommon for an injured party to have his or her health insurance pay the medical bills when they are incurred, and then obtain payment from both their own Medical Payments policy and the liability policy of the tortfeasor, effectively netting a triple-recovery. Generally, none of these policies are entitled to recover from the other or from the injured person for the multiple payments.

Caps-Another possible factor affecting what you can recover is damage caps imposed in West Virginia. In wrongful death and catastrophic injury cases, the limit on non-economic damages (the amount the jury can award for your pain and suffering and similar losses) is $500,000. “Catastrophic injury” refers to cases where someone’s injuries are “permanent and substantial.”

In all other routine accident cases, the limit is $250,000 for non-economic damages. You may still be able to be compensated for medical expenses and lost wages, but pain and suffering awards can be a significant component of injury cases, and these limits may reduce the potential amount of that recovery.

Magistrate Court

The Magistrate Court has jurisdiction over civil cases in which the financial amount in dispute is less than $5,000. A party to a civil action in Magistrate Court has the right to elect that the matter be tried by a jury when the amount in controversy exceeds twenty dollars or involves the possession to real estate.

Circuit Court

The Circuit Court is West Virginia’s only general jurisdictional trial court of record. Circuit Courts have jurisdiction over all civil cases at law over $2,500.00; all civil cases in equity; Jury trials are available in the Circuit Court, and unless the court directs that a jury shall consist of a greater number, a jury shall consist of six persons.

Reputation of Jurisdictions in West Virginia

In general, West Virginia juries and judges have a reputation for pro-plaintiff verdicts and damage awards. There are some exceptions, including the Circuit Courts for Berkley County, Jefferson County, and Upshur County, where relatively conservative juries can be expected. The court system of West Virginia has been described as a “judicial hellhole” by the American Tort Reform Association, and as such, it leads to a generally modest prospect for a fair and reasonable result from most jury trials.

West Virginia recognizes the rule of modified comparative negligence. A plaintiff may not recover if his or her negligence exceeds or equals the combined negligence of the other parties. See, Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S. E.2d 879 (1979). Thus, a plaintiff may be found to have been 49% negligent, and the plaintiff can still recover because his negligence does not equal or exceed the other party’s negligence of 51%. Defendants can also argue that a plaintiff’s contributory negligence is negligence per se, subject to the same requirements of showing proximate causation.

Imputed Liability
Employer

An employer may be held responsible for the torts of his/her employee under three distinct theories: respondeat superior, negligent hiring, and negligent entrustment.

Respondeat Superior

Under this doctrine, an employer may be held vicariously liable for tortious acts proximately caused by an employee, as long as those acts are within the scope of employment. In order to prevail under this theory of recovery, a plaintiff must prove that the injury to his person or property results proximately from tortuous conduct of an employee acting within the scope of his employment, and that the act of the employee was done in accordance with the expressed or implied authority of the employer. The scope of the employment is defined as “an act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act.” An employee who deviates far from his duties can take himself out of the scope of the employment. However, an employee’s willful or malicious act may still be within the scope of employment. See Griffith v. George Transfer & Rigging, Inc., 157 W. Va. 316, 201 S.E.2d 281 (1973) and Barath v. Performance Trucking, Inc., 188 W. Va. 367, 424 S.E.2d 602 (1992).

Negligent Hiring

In order to establish a claim for negligent hiring, a plaintiff must prove that the employer of the individual who committed the allegedly tortious act negligently placed an unfit person in an employment situation involving unreasonable risks of harm to others. See Thomson v. McGinnis, 195 W. Va. 465, 465 S.E.2d 922 (1995).

Negligent Entrustment

An employer who allows an employee to use a vehicle when the employer knows, or from the circumstances is charged with knowing, that the employee is incompetent or unfit to drive may be liable for an injury inflicted by the employee if the injury was proximately caused by the disqualification, incompetency, inexperience, intoxication or recklessness of the employee. See Payne v. Kinder, 147 W. Va. 352, 127 S.E.2d 726 (1962).

Subcontractors

Employers, generally, are not liable for the acts of an independent contractor. However, there are limits on this immunity. For instance, where one engages an independent contractor to do work that is abnormally dangerous and likely to cause injury to a person or property, the employer may be subject to liability if the contractor fails to use due care. See, Peneschi v. Koppers Co, Inc., 170 W. Va. 511, 295 S.E.2d 1 (1982). Likewise, if the work to be performed constitutes the creation of a public or private nuisance, the employer cannot avoid liability simply because it engaged an independent contractor to perform the work. See, West v. National Mines Corp, et al., 168 W. Va. 578, 285 S.E.2d 670 (1981).

Passengers

There is no unauthorized passenger defense in West Virginia. The negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver. A guest or invitee has a right to maintain an action for damages against an owner or operator of an automobile in which he is riding. See, West Virginia Code § 33-6-29.

Parental Liability for Torts of Children

Generally, a parent is not liable for the malicious, intentional acts of his/her minor, unemancipated child based upon their own independent negligence in failing to control their children. However, there is a statutory exception that establishes parental liability for the willful, malicious or criminal acts of children that proximately damage public or private property up to a limit of $5,000.00. See, W. Va. Code § 55-7A-2.

Family Purpose Doctrine

The family purpose doctrine is followed in West Virginia. The doctrine provides that the owner of a motor vehicle, purchased or maintained for the use or enjoyment of his family, is liable for injuries caused by the negligent driving of that vehicle by any member of his family. See Freeland v. Freeland, 152 W. Va. 332, 162 S.E.2d 922 (1968). However, where a family member is driving another family member’s vehicle, the family purpose doctrine cannot be used by a defendant to impute the negligence of the family member driving the vehicle to the family member who owns the vehicle. See Bartz v. Wheat, 169 W. Va. 86, 285 S.E.2d 894 (1982).

Dram Shop

A vendor of alcoholic beverages may be liable for injuries sustained by a third party that result from the intoxication of the vendor’s patron. The basis of dram shop actions in West Virginia is not based on dram shop legislation, but rather, a common law negligence approach that relies upon the violation of a specific alcohol related statute. Namely, West Virginia Code § 55-7-9 provides that any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation. In turn, West Virginia Code § 60-7-12 provides that alcoholic beverages shall not be sold to a person who is less than twenty-one years of age; an habitual drunkard; intoxicated; addicted to the use of a controlled substance; or mentally incompetent. See Bailey v. Black, 183 W. Va. 74, 394 S.E.2d 58 (1990). In regard to a gratuitous social host, the West Virginia Supreme Court of Appeals has held that absent a basis in either common law principles of negligence or statutory enactment, there is generally no liability on the part of a social host who gratuitously furnishes alcohol to a guest when an injury to an innocent third party occurs as a result of the guest’s intoxication. See Overbaugh v. McCutcheon, 183 W. Va. 386, 396 S.E.2d 153 (1990).

Wrongful Death

In West Virginia, a wrongful death action is brought by the decedent’s personal representative and seeks to recover, on behalf of the statutory beneficiaries, the loss as a result of the death of the decedent. The focus of this type of action is not on the damages incurred by the decedent, but rather the loss incurred by the beneficiaries.

Personal Representative and Beneficiaries

The Wrongful Death Statute specifies that any action brought under it shall be brought by and in the name of the personal representative of the decedent. See, W. Va. Code § 55-7-6(a). The Act sets forth two distinct classes of beneficiaries who may be entitled to recover damages for a wrongful death. The jury may apportion the damages to the beneficiaries, and if it does not, then the Court must do so when it enters Judgment on the verdict. See, W. Va. Code § 55-7-6 (b).

The first class of beneficiaries include the surviving spouse and children of the deceased, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in a distribution. If there are no such survivors, then the damages shall be distributed in accordance with the decedent’s will or, if there is no will, in accordance with the laws of decent and distribution as set forth in chapter forty-two of the code. See, W. Va. Code § 55-7-6 (b).

Defenses

Any defense which would have barred suit or recovery by the deceased also bars recovery by a wrongful death plaintiff, e.g., assumption of the risk or contributory negligence by the decedent.

Statute of Limitations

A wrongful death action must be filed within two years from the date of death. See, W. Va. Code § 55-7-6 (d).

Damages

Damages may include both pecuniary damages which are designed to compensate for the loss of economic benefits and non-economic (solatium damages). The Virginia’s Wrongful Death Act specifically outlines four categories/descriptions of allowable damages. See, W. Va. Code § 55-7-6 (c). The categories are as follows:

Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
Compensation for reasonably expected loss of income of the decedent and services, protection, care and assistance provided by the decedent;
Expenses for the care, treatment, hospitalization of the decedent incident to the injury resulting in death; and
Reasonable funeral expenses.
Compromise
Prior to the Commencement of the Wrongful Death Action

No wrongful death action may be maintained by the personal representative where the decedent, after injury, entered into a compromise of claims and accepted satisfaction therefor previous to his or her death. See, W. Va. Code § 55-7-5.

Compromises of Wrongful Death Action Must Be Court Approved

Any settlement of a wrongful death claim must be approved by a Circuit Court in West Virginia. If the claim is settled without pending litigation, the personal representative may petition the Court for approval of the settlement. See, W. Va. Code § 55-7-7.

Survival Actions

Any claim recognized by West Virginia law can survive the death of either the person entitled to assert such claim, or the person against whom such claim would be asserted. In the event that a person asserts a personal injury claim and then dies while such claim is pending, the claim should be amended to be a wrongful death claim. See, W. Va. Code § 55-7-8. Any defense which would have barred suit or recovery by the deceased also bars recovery by survival action.

Loss of Consortium

Loss of consortium means loss of society, affection, assistance, conjugal fellowship and loss or impairment of sexual relations. West Virginia recognizes claims for loss of consortium, and plaintiffs may seek recovery for the same.

Premises Liability

Premises liability actions are a version of negligence involving the liability of the owner or occupant (herein collectively “owner”) of real property for damage sustained by another person on the premises.

Duty Owed by Owner to Other Persons

The duty owed to injured individuals, by the owner or possessor, differs depending on which of the following three (3) categories is applicable.

Trespasser

A trespasser is a person who intentionally and without consent or privilege enters another’s property. Generally, the owner or

possessor of property owes no duty of ordinary care to protect or safeguard an unknown trespasser from injury upon the premises. With regard to a trespasser, a possessor of property needs only to refrain from willful or wanton injury. Moreover, there is no general duty on the part of an owner to prevent a trespass. See, Huffman v. Appalachian Power Company, 187 W. Va. 1, 415 S.E.2d 145 (1992).

However, once the owner is aware of the trespasser’s presence, some degree of duty arises on the part of the owner. Essentially, railway employees must exercise reasonable care not to injure a known trespasser after the trespasser is discovered upon railroad tracks. See, Craighead v. Norfolk and Western Railway Company, 197 W. Va. 271, 475 S.E.2d 363 (1996).

The legal standard varies when the trespasser is a child, but generally West Virginia does not adhere to the “attractive nuisance” doctrine. That doctrine provides that children are unable to control their impulses, and when a piece of property has some feature that children find interesting (pond, tower, etc.), the owner should anticipate that children may be drawn to that feature, and should take appropriate measures to protect such child trespassers. However, there are some cases in West Virginia which carve out an exception to this general rule in cases where an owner has created or maintains a dangerous instrumentality or condition at a place frequented by children who thereby suffer injury, and the owner may be held liable for such injury if they knew, or should have known, of the dangerous condition and that children frequented the dangerous premises either for pleasure or out of curiosity. See Love v. Virginian Power Co., 86 W. Va. 393, 103 S.E.2d 352 (1920). In regard to the same type of dangerous condition or instrumentality relative to an adult trespasser, a plaintiff must prove the following conditions: 1) the possessor must know, or from facts within his knowledge should know, that trespassers constantly intrude in the area where the dangerous condition is located; 2) the possessor must be aware that the condition is likely to cause serious bodily injury or death to such trespassers; 3) the condition must be such that the possessor has reason to believe trespassers will not discover it; and 4) in that event, the possessor must have failed to exercise reasonable care to adequately warn the trespassers of the condition. See, Huffman v. Appalachian Power Company, 187 W. Va. 1, 415 S.E.2d 145 (1992).

Licensees/Invitees

A licensee is described as a person who enters the land of another, with express or implied permission, and for his or her own purposes and benefits. Licensees include the following classes of persons: social guests, hunters, persons who are invited into one portion of the premises and proceed to enter other portions, trespassers whose presence is known and acquiesced-to by the owner.

Generally an owner has no duty to keep the premises safe and suitable for the use of a licensee and is only liable for willful and wanton injury that may be done to a licensee. Specifically, the West Virginia Supreme Court of Appeals has held that the owner of property has no obligation to provide against dangers which arise out of the existing condition of the premises inasmuch as the licensee goes upon the premises subject to all the dangers attending such conditions. See Burdette v. Burdette, 147 W. Va. 313, 127 S.E.2d 249 (1962).

The distinction between an invitee and a licensee has been abolished in West Virginia. See Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). Despite this pronouncement, landowners or possessors now owe any non-trespassing entrant a duty of reasonable care under the circumstances. See Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999).

Moreover, in regard to the social guests of tenants, a landlord owes only the minimal duty of refraining from willfully or wantonly injuring the social guest, who is no more than a licensee. See Jack v. Fritts, 193 W. Va. 494, 457 S.E.2d 431 (1995). Finally, in regard to the common use tenant areas, the West Virginia Supreme Court of Appeals has held that in the absence of a special contract, the law imposes on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants. See Lowe v. Community Inv. Co., 119 W. Va. 663, 196 S.E. 490 (1938).

Products Liability

Products liability actions are of two basic types: defective products and inherently dangerous products. Inherently dangerous products are those which were manufactured without defect, yet pose a danger to person or property due to the design of the product. Products liability claims essentially argue that the defendant was negligent or breached applicable warranties.

Generally, a manufacturer must exercise ordinary care to produce products which are reasonably safe for their intended use. If an available alternative design, which would make the product safer with minimal increase in the cost of design or production, is available the manufacturer may be held liable for failing to implement such design. See, Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974). As with other causes of action, the plaintiff must also show that his or her damages were proximately caused by the conduct of the defendant. See, Morningstar v. Black and Decker Manufacturing Company, 162 W. Va. 857, 253 S.E.2d 666 (1979).

The general test for establishing a basis for a products liability claim in West Virginia is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard of reasonableness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer’s standards should have been at the time the product was made. See, Morningstar v. Black and Decker Manufacturing Company, 162 W. Va. 857, 253 S.E.2d 666 (1979). This use defectiveness covers situations where a product may be safe as designed and manufactured, but which becomes defective because of the failure to warn of dangers which may be present when the product is used in a particular manner. See, Morningstar v. Black and Decker Manufacturing Company, 162 W. Va. 857, 253 S.E.2d 666 (1979). For the duty to warn to exist, the use of the product must be foreseeable to the manufacturer or seller, and the determination of whether a defendant’s efforts to warn of a product’s dangers are adequate is a jury question. See Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 307 S.E.2d 603 (1983). Lack of contractual privity is not a defense if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to be affected by the goods. See, W. Va. Code § 46-2-318.

Strict Liability

Strict liability is not generally recognized in West Virginia, except for “abnormally dangerous and ultra -hazardous activities” (such as blasting, aviation, and aerial broadcast spraying). See, Bailey v. S. J. Groves & Sons Co., 159 W. Va. 864, 230 S.E.2d 267 (1951); Parcell v. United States, 104 F. Supp. 110 (S.D. W. Va. 1951); Kell v. Appalachian Power Co., 170 W. Va. 14, 289 S.E.2d 450 (1982).

Medical Malpractice

In West Virginia, actions for medical negligence are governed by the Medical Professional Liability Act. See West Virginia Code § 55-7B-1 et seq. The Act requires that a plaintiff comply with the requirements of West Virginia Code § 55-7B-6 prior to the filing of a medical professional liability action against a health care provider. The foregoing section requires that at least thirty (30) days prior to filing suit, the plaintiff shall serve a notice of claim upon each health care provider to be named in litigation, which shall include: 1) a statement of the theory of liability, and 2) a list of all health care providers and health care facilities to whom the notice of claim is being sent; together with a screening certificate of merit, which shall be executed under oath by a health care professional qualified as an expert witness in West Virginia, which shall include: 1) the expert’s familiarity with the standard of care at issue, 2) the expert’s qualifications, 3) the expert’s opinion as to how the standard of care was breached, and 4) the expert’s opinion as how the breach of the standard of care resulted in injury or death. A plaintiff can bypass the screening certificate of merit if they believe that the cause of action is based upon a well-established legal theory of liability which does not require expert testimony; however, a statement setting forth such basis of alleged liability shall be served to the health care provider in lieu of a screening certificate of merit.

The Act further provides that a plaintiff who has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim. Upon receipt of the notice of claim or the screening certificate of merit, the health care provider may state that he or she has a bona fide defense and provide the name of his or her counsel to the plaintiff, or the health care provider may demand pre-litigation mediation provided for in subsection (g) of the Act. Mediation, if selected, shall be concluded within forty-five days of the written demand. Mediation shall be conducted in accordance with Rule 25 of the West Virginia Court Rules, and the plaintiff may depose the health care provider prior to or during the mediation. The Act further provides for tolling of the statute of limitations while the plaintiff and health care provider are engaged in the pre-suit requirements. If the mediation is unsuccessful, or not demanded, the plaintiff may move forward with his or her action. Finally, a notice of claim, a health care provider’s response, a screening certificate of merit, and the results of any mediation are confidential any are not admissible as evidence, unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.

Medical malpractice recoveries are subject to a cap for noneconomic loss in the amount of $250,000.00 per occurrence; however, in cases where the plaintiff’s damages were for: 1) wrongful death; 2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or 3) 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, the cap for noneconomic loss is raised to the amount of $500,000.00 per occurrence. See West Virginia Code § 55-7B-8. In addition, the Act further provides for the cap amounts to increase on an annual basis by an amount equal to the consumer price index, up to fifty percent of the stated cap amounts.

Immunity
Interspousal

The common-law defense of interspousal immunity in tort was abolished by the West Virginia Supreme Court of Appeals in Coffindaffer v. Coffindaffer, 161 W. Va. 557, 244 S.E.2d 338 (1978).

Parent-Child Immunity

The common-law defense of parent-child immunity in tort was abolished by the West Virginia Supreme Court of Appeals in Erie Indemnity Co. v. Kerns, 179 W. Va. 305, 367 S.E.2d 774 (1988); however, it is not applicable in automobile accident litigation, nor does it apply to intentional, willful, or malicious torts.

Shopkeeper Immunity

By statute, any owner of merchandise or its agents or employees may detain a suspected shoplifter for the purpose of investigating whether or not such person has committed or attempted to commit shoplifting; provided, the owner of merchandise or its agents or employees (1) have reasonable grounds to believe that the suspected shoplifter has committed the crime of shoplifting; and (2) the detention of the suspected shoplifter is done in a reasonable manner and does not last longer than thirty minutes. See, W. Va. Code § 61-3A-4.

Pre-injury Exculpatory Agreements and Anticipatory Releases

Although not favored and strictly construed, pre-injury exculpatory agreements and anticipatory releases have been upheld and enforced in West Virginia; however, the West Virginia Supreme Court of Appeals has held that pre-injury agreements and anticipatory releases purporting to exempt a defendant from all liability for any future loss or damage will not be construed to include the loss or damage resulting from the defendant’s intentional or reckless misconduct or gross negligence, unless the circumstances clearly indicate that such was the plaintiff’s intention. See, Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991). Moreover, the West Virginia Supreme Court of Appeals has held when a statute imposes a standard of conduct, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for the failure to conform to that statutory standard is unenforceable. See, Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991).

Misuse of Product

In a products liability case, the defendant can use the abnormal use of the product defense against the plaintiff. See, Star Furniture Co. v. Palaski Furniture Co., 171 W. Va. 79, 297 S.E.2d 854 (1982); Morningstar v. Black and Decker Mfg Co., 162 W. Va. 857, 253 S.E.2d 666 (1979).

Exclusivity of Workers’ Compensation Claim

Workers’ compensation is the sole remedy for an injured worker as against his or her employer or co-employee for injuries sustained in the workplace, unless the employer or person against whom liability is asserted acted with deliberate intention. See, W. Va. Code § 23-2-6; § 23-2-6a; and § 23-4-2.

Non-permissive Use

In West Virginia, the omnibus clause in a motor vehicle policy provides coverage for any person who has the consent or the permission, either express or implied, of the owner of the motor vehicle. See W. Va. Code § 17D -4-12 (b)(2). As a corollary, West Virginia courts have held that absent the required consent or permission, an impermissible driver is not an insured under the motor vehicle policy. See, Allstate Ins. Co. v. Smith, 202 W. Va. 384, 504 S.E.2d 434 (1998).

Plaintiff’s Failure to Mitigate His or Her Damages

Generally, a plaintiff has a duty to mitigate his or her damages. In West Virginia, the failure of a plaintiff to wear his or her safety belt, which is a violation of a statute, is inadmissible relative to the plaintiff’s negligence or in mitigation of damages. See, W. Va. Code § 17C15-49(d).

VII. DAMAGES

Compensatory Damages
Generally

Compensatory damages are allowed for injuries actually received. Damages must be established with reasonable certainty. Damages in a personal injury action can include:

any bodily injuries he sustained and their effect on his health according to their degree and probable duration;
any physical pain [and mental anguish] he suffered in the past [and any that he may be reasonably expected to suffer in the future];
any disfigurement or deformity and any associated humiliation or embarrassment;
any inconvenience caused in the past [and any that probably will be caused in the future];
any medical expenses incurred in the past [and any that may be reasonably expected to occur in the future];
any earnings he lost because he was unable to work at his calling;
any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future;
any property damage he sustained.
Future Losses

Damages for future losses may be recovered, but those losses must be proven by the plaintiff with particularity. These can include future lost wages or income, lost business opportunities, future medical treatment (including future medical monitoring), and future pain and suffering. If such losses, or the amount of damage to be suffered therefrom, require any speculation, no recovery will be allowed. Future economic damages are well-suited for expert testimony, as they must be determined with certainty and then discounted to present-day value for purposes of calculating the award to be fixed.

Property Damage

Generally, the measure of recovery for damage to property is the actual cash value of the property. Where that property was damaged, but not destroyed, the proper measure of damages is the difference in fair market value of the property immediately before and immediately after the incident. This is known as the diminution of value, and is often awarded in addition to the cost of repairing the damage.

Mitigation of Damages

A plaintiff has a duty to mitigate his damages.

Consequential Damages

Consequential damages are most commonly involved in contract actions, where the claimant alleges some damages which are not directly caused by the actions complained of, but result from some of the consequences or results of such actions. Such damages are only recoverable when a party can prove that at the time of the contract the parties could reasonably have anticipated that these damages would be a probable result of the breach. See, Kentucky Fried Chicken of Morgantown, Inc. v. Sellaro, 158 W. Va. 708, 214 S.E.2d 823 (1975).

Punitive Damages

There is no statutory cap on punitive damages in West Virginia. Punitive damages, also known as exemplary damages, are available in tort actions, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorize it, the jury may assess, exemplary, punitive or vindictive damages: these terms being synonymous. See, Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895). The purpose of punitive damages is to punish the wrongdoer and deter others from similar conduct. Accordingly, punitive damages are generally not awarded against a defendant who is merely vicariously liable for the acts of another, unless they authorized or ratified the conduct of the wrongdoer, or the wrongdoer was acting within the scope of his employment. See, Jarvis v. Modern Woodmen of America, 185 W. Va. 305, 406 S.E.2d 736 (1991).

Evidence of a defendant’s financial position is admissible because it is material to this purpose and is relevant to a determination of the size of the award and whether it is so large as to be excessive.

The West Virginia Supreme Court of Appeals has held that the public policy of West Virginia does not preclude insurance coverage for punitive damages arising from gross, reckless or wanton conduct. See, Hensley v. Erie Insurance Co., 168 W. Va. 172, 283 S.E.2d 227 (1981). This excludes, however, coverage for punitive damages awarded as a result of intentional acts.

For cases involving a drunk driver, the driver’s conduct will be deemed to show a reckless disregard for the rights of others when the evidence proves that the person drove a vehicle in the state while under the influence of alcohol; or under the influence of any controlled substance; or under the influence of any other drug; or under the combined influence of alcohol and any controlled substance or any other drug; or has the alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and when so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure. See, W. Va. Code § 17C-5-2 (a).

Attorney’s Fees
Generally

Generally, attorney’s fees are not recoverable against another party unless they are permitted by contract or statute. In tort litigation, each party is

required to pay their own attorney’s fees regardless of the result of the litigation. Caution should be taken however with certain actions maintained under federal and state laws pertaining to discrimination as those particular statutes may have provisions which permit plaintiffs to seek attorney’s fees.

Actions Against Insurers

When the insured must resort to litigation to enforce a liability carrier’s contractual duty to provide coverage for his/her potential liability to third persons, the insured is entitled to recovery of costs, including attorney’s fees, arising from the declaratory judgment litigation; provided that the court finds that the insurer did in fact have a duty to defend its insured under its policy. See, Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986).

Offer of Judgment

If a defendant makes an offer to allow judgment to be taken for an amount of money more than 10 days from the date of trial, and the same is refused by the plaintiff, and the subsequent judgment is less than or equal to the offer, then the plaintiff must pay the offering defendant’s costs incurred after the making of the offer. See, WVRCP 68.

Limitation on Damages

West Virginia does not have a statutory cap on economic damages. Generally, there is no statutory cap on non-economic damages in most actions; however, Medical Malpractice judgments are subject to a non-economic statutory cap (See, Section III-J), and the State of West Virginia and its political subdivisions are subject to a non-economic statutory cap of $500,000. See, West Virginia Governmental Tort Claims and Insurance Reform Act (West Virginia Code 29-12A-1). Finally, there are no statutory caps on punitive damages.

VIII. INSURANCE COVERAGE IN WEST VIRGINIA

Automobile Liability Limits

Liability insurance is “required” in West Virginia. Proof of insurance coverage is required before one can register a motor vehicle. An owner of a motor vehicle who fails to maintain proper liability insurance shall have his driver license suspended for a period of thirty days and shall have the motor vehicle registration suspended until proof of insurance is presented to the West Virginia Department of Motor Vehicles. See West Virginia Code § 17D- 2A-5. In addition to this administrative penalty, an owner of an uninsured motor vehicle is guilty of a misdemeanor and upon conviction, shall be fined not less than two hundred dollars nor more than five thousand dollars, or confined in the county or regional jail not less than fifteen days nor more than one year, or both. See, West Virginia Code § 17D- 2A-9. By statute, any insurance policy, issued to a resident of West Virginia or issued in West Virginia, providing insurance coverage for liability arising from the use of an automobile shall provide coverage for at least $20,000 to any single plaintiff for personal injury, $40,000 total coverage for any single incident, and coverage for property damage in the amount of $10,000. See, West Virginia Code § 17D- 4-2.

No Personal Injury Protection Coverage in West Virginia

Uninsured / Underinsured Motorist Coverage

Any policy for automobile coverage must include coverage for damages caused to the insured by uninsured motorists in at least statutory minimum liability limits (20K/40K/10K). See, W. Va. Code § 33-6-31 (b). A vehicle is underinsured if its liability coverage is less than limits the insured carried for underinsured motorists’ coverage or has been reduced by payments to others injured in the accident to limits less than limits the insured carried for underinsured motorists’ coverage. See, W. Va. Code § 33-6-31 (b). In some circumstances, the underinsured motorist coverage of several policies can be stacked together to afford greater relief to qualified injured persons.

Any action filed by an injured plaintiff who intends to seek recovery of any Uninsured or Underinsured motorist coverage he or she may have must serve the lawsuit on his or her insurance carrier in addition to any other defendants. See, W. Va. Code § 33-6-31 (d).

Bad Faith

West Virginia Code § 55-13-1 allows an insured to recover costs and reasonable attorneys’ fees in a declaratory judgment action brought by the insured against the insurer, if the trial court determines that the insurer was not acting in good faith when it denied coverage or refused payment under the policy. There can also be a bad faith claim when the carrier unjustifiably refuses to settle a claim within policy limits.

Reservation of Rights

West Virginia has no statutory requirements for a liability insurer to provide notice to the claimant or claimant’s counsel when a breach of the terms or conditions of the policy may give rise to a contractual defense on the part of the insurer.

Punitive Damages

Subrogation

Generally, an insurer is subrogated to claims of its insured once the insurer has indemnified the loss of the insured. The insurer has the right to file suit for its subrogated interest in its own name or in the name of its insured.

MISCELLANEOUS ISSUES
Collateral Source Rule

The Collateral Source Rule is recognized in West Virginia. In a tort action, the Collateral Source Rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party. Moreover, the Collateral Source Rule also ordinarily prohibits inquiry as to whether the plaintiff has received payments from collateral sources. This is based upon the theory that the jury may well reduce the damages based on the amounts that the plaintiff has been shown to have received from collateral sources. See Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981).

Joint and Several Liability

The State of West Virginia has modified Joint and Several Liability by statute (See W. Va. Code §55-7-24). Joint Liability has been abolished for defendants found to be 30% or less at fault, and in such situations, those defendants would pay only that percentage determined by the jury; provided however, if a defendant is subsequently found to be uncollectible, any defendant found to be 10% or greater at fault is subject to a reallocation of the uncollected amount. Joint and Several Liability still applies in strict liability claims for the manufacture and sale of defective products, in situations where the defendants acted intentionally or in concert with a common plan or design, and where the defendant negligently or

willfully caused the unlawful emission, disposal or spillage of a toxic or hazardous substance.

Offer of Judgment

Offers of Judgment are recognized in West Virginia. (See Section VII – D).

Seat Belt Statute

In West Virginia, the failure of a plaintiff to wear his or her safety belt, which is a violation of a statute, is inadmissible relative to the plaintiff’s negligence or in mitigation of damages. See, W. Va. Code § 17C15-49(d).

Releases

Unless the document specifically provides for the release of all tortfeasors, a release discharges the obligations of only the party to the release. Moreover, the release to, or an accord and satisfaction with, one or more tortfeasors shall not inure to the benefit of another tortfeasor, and shall be no bar to an action or suit against such other tortfeasor for the same cause of action to which the release or accord and satisfaction relates. See, W. Va. Code § 55-7-12.

MARC J. ATAS

LAWYER ENDORSEMENTS

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