January 19, 2021

Volume XI, Number 19


January 18, 2021

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West Virginia Abolishes Joint Liability and Establishes a New Comparative Fault Standard

On March 5, 2015, West Virginia Governor Earl Ray Tomblin signed into law House Bill 2002, which establishes a new comparative fault standard and abolishes joint liability. As a result, in most situations, a defendant will only be liable for the percentage of the plaintiff’s damages attributed to that defendant’s conduct. In addition, fault can be attributed not only to parties, but also to nonparties. In many instances, these changes will reduce the amount of damages for which a defendant ultimately will be responsible.

House Bill 2002 creates a new comparative fault standard in that juries may consider the fault of nonparties.  Specifically, in cases in which a plaintiff is seeking damages for personal injury, property damage, or wrongful death, the jury will now allocate fault to parties, as well as nonparties, in direct proportion to that person or entity’s percentage of fault.  The new West Virginia Code provisions created by House Bill 2002 set forth a procedure for defendants to identify nonparties to whom fault may be allocated.

The plaintiff will be barred from recovery if he is found to be more than 50% at fault.  Previously, a plaintiff’s fault could not reach or exceed 50%.  In addition, if a plaintiff is found to be less than 50% at fault, his recovery will be reduced in proportion to the fault allocated to him.  Although there is a possible ambiguity, as this new West Virginia Code provision does not specifically address reduction of a plaintiff’s recovery in situations in which the plaintiff is found to be 50% at fault, the practical effect is that the plaintiff’s recovery ultimately will be reduced in proportion to his degree of fault in 50-50% situations because with several liability, defendants will only be liable up the their percentage of fault.

Through House Bill 2002, the Legislature also adopted several liability, in which each defendant will only be liable for the amount of compensatory damages proportionate to his percentage of fault.  For instance, if Defendant 1 is found to be 60% at fault and Defendant 2 is found to be 40% at fault for the plaintiff’s compensatory damages in the amount of $100,000, a judgment in the amount of $40,000 will be entered against Defendant 2.  Under the joint liability theory previously recognized in West Virginia, Defendant 1 and 2 could both be liable for the entire $100,000 judgment.

Despite the foregoing, in the example above, if Defendant 1 is financially insolvent, Defendant 2 ultimately may be responsible for Defendant 1’s portion of the judgment.  Within a year after a judgment becomes final, a plaintiff may move to reallocate any amount he was unable to collect from a liable defendant among the other parties found to be liable.

House Bill 2002 does provide for several instances in which joint liability may be imposed, however, including a defendant whose driving under the influence is a proximate cause of the plaintiff’s damages, a defendant whose criminal conduct is a proximate cause of the plaintiff’s damages, and a defendant whose illegal disposal of hazardous waste is a proximate cause of the plaintiff’s damages.  In addition, joint liability may be imposed on defendants engaged in a conspiracy.

The new West Virginia Code section created by House Bill 2002 related to several liability does not apply to the Governmental Tort Claims and Insurance Reform Act, the Uniform Commercial Code, and the Medical Professional Liability Act.

House Bill 2002 is applicable to causes of action arising on or after May 25, 2015

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume V, Number 92



About this Author

Randolph Fife, Steptoe Johnson Law Firm, Litigator

Randy Fife concentrates his practice in the areas of general litigation, primarily for insurance carriers.  He has argued before the West Virginia Supreme Court of Appeals and the United States Court of Appeals for the Fourth Circuit. Mr. Fife is the Assistant Leader of the firm's General Litigation Practice Group.