Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerKeep Right Traffic LawsLaws Regarding Using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Threshold (75%)
Cost to repair vehicle is greater than 75% of market value determined by a nationally accepted used car value guide. W. Va. St. § 17A-4-10(a).
Automobile: Pro-Rata. W. Va. Code Ann. § 114-14-7 provides: “Insurers shall include the insured’s deductible, if any, in subrogation demands. Subrogation recoveries shall be shared on proportionate basis with the insured, unless the deductible amount has been otherwise recovered. No deduction for expenses can be made from the deductible recovery unless an outside attorney is retained to collect such recovery. The deduction may then be for only a pro-rata share of the allocated loss adjustment expense.”
Deductible must be included in any subrogation demand.
Diminution of Value
First Party: An informational letter from the West Virginia Offices of the Insurance Commissioner dated November 2001, withdrew a previous information letter dated August 2001, which outlined policy exclusions for diminished value, first-party or third-party. West Virginia Informational Letter No. 137 (Aug. 2001). This informational letter was originally written in response to Ellis v. King, 400 S.E.2d 235 (W.V. App. 1990). However, according to a 2/2/15 telephone conversation with Victor Mullins, Associate Counsel with the West Virginia Insurance Commissioner’s Office, the August 2001 informational letter went a little too far, suggesting the Ellis holding extended to first-party claims, when this is not the case. It would appear that there currently is no authority authorizing first-party claims for diminution in value under auto policies. No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
Third Party: The West Virginia Supreme Court, stated that “[i]f the vehicle looked and operated substantially the same after the accident but its market value had been diminished by the fact of being in an accident, then to be adequately compensated, the injured party must receive, in addition to the cost of repairs, the diminution in market value stemming from the injury”, but this should be narrowly construed with proof of the diminished value, structural damage to the vehicle, and only for a vehicle with “significant value” prior to the accident. The Supreme Court created an exception to the general rule permitting only cost of repair or diminution in value for motor vehicles which were structurally damaged and continued to suffer a residual loss of value even after they were repaired. Ellis v. King, 400 S.E.2d 235 (W. Va. 1990).
If the owner of a vehicle which is damaged and subsequently repaired can show a diminution in value based upon structural damage after repair, then recovery is permitted for that diminution in addition to the cost of repair, but the total shall not exceed the market value of the vehicle before it was damaged. Brooks v. City of Huntington, 768 S.E.2d 97, (W.Va. 2014).
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
There are no cases directly addressing the duty of a liability carrier faced with the settlement of one of multiple claims presented which arise out of a single incident. However, such a liability carrier must occupy an impartial position with respect to such claims and Interpleader is encouraged. Arnold v. Arnold, 24 S.E.2d 102 (W.Va. 1943).
Funeral Procession Traffic Laws
West Virginia law requires other vehicles, except emergency vehicles or when directed otherwise by a police officer, to yield the right-of-way to funeral processions. When the lead vehicle lawfully enters an intersection, the other vehicles in the procession may follow without regard to any traffic control devices as long as each vehicle exercises due care. Each vehicle must follow the other as closely as safely possible. All non-law enforcement escort vehicles must exhibit at least one flashing amber or purple light. W. Va. Code § 17C-23-2 to –5.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Tortfeasor may not use the Family Purpose Doctrine to impute contributory negligence of permissive user to owner to bar recovery for damage to owner’s vehicle. Bartz v. Wheat, 285 S.E.2d 894 (W. Va. 1982).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
West Virginia recognizes the Family Purpose Doctrine. Bartz v. Wheat, 169 W. Va. 86, 89, 285 S.E.2d 894, 896 (W. Va. 1982).
Sponsor Liability for Minor’s Driving: No Sponsorship Liability Statute.
However, under W. Va. Code § 55-7A-2, liability can be imposed on parents when child willfully or maliciously injures person, destroys property, sets fire to forest or wooded area of another, or willfully takes property of another.
Keep Right Traffic Laws
Statute: W. Va. St. § 17C-7-1.
Summary: Drivers must drive in the right lane unless passing another vehicle; when the right half of the roadway is closed to traffic while under construction or repair; on a roadway divided into three marked traffic lanes; or on a roadway designated for one-way traffic. Slower traffic must keep right. Drivers proceeding slower than the normal speed of traffic must drive in the right lane except when passing another vehicle or when preparing for a left turn.
Flow of Traffic: It is a traffic infraction to drive continuously in the left lane of a multi-lane roadway when it impedes the flow of other traffic.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No person may drive or operate a motor vehicle while texting or using a cellphone. Exceptions include cell phone usage in a hands-free manner, usage by emergency personnel in course with their duties, and reporting an emergency. Va. Code § 17C-14-15.
Drivers with a level one instruction permit and those under the age of 18 may not use a wireless communication device while operating a motor vehicle. Exceptions include emergency situations and when contacting emergency personnel. W. Va. Code § 17B-2-3(a).
Other Prohibitions: No Applicable Laws.
Loss Of Use
Loss of Use: Yes. Loss of use damages are recoverable. Ellis v. King, 400 S.E.2d 235 (W.Va. 1990). Loss of use is measured by rental value. O’Dell v. McKenzie, 145 S.E.2d 388 (W.Va. 1965). It is recoverable for the period of time during which the owner is deprived of his vehicle. Hardman Trucking v. Poling Trucking Co., 346 S.E.2d 551 (W.Va. 1986). There is no authority requiring that a replacement vehicle actually be rented in order claim loss of use, instead the relevant caselaw appears to support such a claim for the cost of a hypothetical rental. Somerville v. Dellosa, 56 S.E.2d 756, 763 (W.Va. 1949). Loss of use is recoverable whether or not the vehicle is repaired or totaled. Ellis v. King, 400 S.E.2d 235 (W.Va. 1990).
Lost Profits: Yes. Loss of profits is recoverable when no replacement vehicle is available. The Court has established stringent prerequisites to such recovery: “In order to recover for loss of profits as the result of a tort, they must be such as would be expected to follow naturally the wrongful act and are certain both in their nature and the cause from which they proceed.” Ohio-West Virginia Co. v. Chesapeake & Ohio Railway., 124 S.E. 96 (W.Va. 1928); see also, Stewart v. Pollack-Forsch Co., 143 S.E. 98 (W.Va. 1928); Shatzer v. Freeport Coal Co., 107 S.E. 2d 503 (W.Va. 1959). In a case where a vehicle owner might lessen his damages by renting a replacement, “the plaintiff would not be entitled to recover the vehicle’s earnings, but only the amount it would have cost him to replace the vehicle…If that had been shown to be impossible then the earnings of the vehicle, not including those of its driver, would have been relevant on the question of damages.” Somerville v. Dellosa, supra.
Comments: Damages for annoyance and inconvenience may also be recovered when measuring damages for loss of use to property.” Ellis v. King, supra.
Med Pay/PIP Subrogation
Med Pay: Subrogation allowed if policy provides for it and recovery reduced for pro-rata costs of collection. Federal Kemper Ins. Co. v. Arnold, 393 S.E.2d 669 (W. Va. 1990).
PIP: Coverage not applicable.
Made Whole: Can be overridden with policy language. Kanawha Valley Radiologists, Inc. v. One Valley Bank, 557 S.E.2d 277 (W. Va. 2001).
Statute of Limitations: The two (2) year personal injury statute of limitations runs from the date of the insured’s accident. W. Va. Code § 55-2-12 (2000).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: W. Va. Code § 17C-14-1.
Common Law Rule: The act of a thief stealing a car is an efficient intervening cause, protecting the vehicle owner from liability. State of W. Va., ex rel. Poulos v. Fidelity & Cas. Co. of New York, 263 F.Supp. 88 (S.D.W. VA. 1967); See Yourtee v. Hubbard, 474 S.E.2d 613 (W. Va. 1996) (holding that vehicle owner owed no duty to vehicle thief other than to refrain from wanton or willful misconduct).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer may (1) offer a substantially similar vehicle to claimant which does not include the reimbursement of sales tax, or (2) offer cash settlement to claimant based on the minimum cash value of the vehicle including an extra 5% of the cash value as reimbursement for any excise tax imposed. W. Va. Code Ann. § 33-6-33; W. Va. Code R. § 114-14-7.
Third-Party Claims: Claimant is defined as a first-party, a third-party, or both. W. Va. Code R. § 114-14-2. Third-party insurers must follow the same rules as first-party insurers.
Pedestrian and Crosswalk Laws
W. Va. St. § 17C-10-2: Vehicles must yield to pedestrian in crosswalk on vehicle’s half of road or close to it. Pedestrians must not step off curb and into path of vehicle when vehicle does not have time to stop.
W. Va. St. § 17C-10-3: Pedestrians must yield to vehicles when crossing outside crosswalk. Pedestrians must use crosswalk at intersections with traffic control devices.
Summary: Failure of pedestrian to keep lookout continuously while crossing the street is not negligence as a matter of law. Kretzer v. Moses Pontiac Sales, Inc., 201 S.E.2d 275, 157 W.Va. 600 (1973).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Case law allows for owner of commercial vehicle. Nothing specifically for rental cars. An owner is not entitled to recover amount which he would have earned with the commercial truck, but only amount which it would have cost plaintiff to replace truck by renting one in its place. However, while damages for loss of use of a commercial vehicle should normally be measured by the cost of hiring another vehicle, where the owner can show that no substitute vehicle was available for rent, loss of profits is the proper element of damages to be recovered. Somerville v. Dellosa, 56 S.E.2d 756 (W. Va. 1949); Ellis v. King, 400 S.E.2d 235 (W. Va. 1990).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: The renter’s personal auto policy is primary. However, any liability insurance purchased for additional consideration from the car rental company is primary to other available insurance. W.V. Stat. § 33-6-29.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. A driver of a motor vehicle suddenly becomes physically or mentally incapacitated without warning, he cannot be held liable for any injury resulting from the operation of his vehicle while he is so incapacitated. Keller v. Wonn, 87 S.E.2d 453 (W. Va. 1955).
Court found that the sudden unconsciousness from hypertension was unforeseeable even after multiple doctor visits and being advised to lead a more sedentary life style including not driving an automobile. Keller v. Wonn, 87 S.E.2d 453 (W. Va. 1955).
Suspension of Drivers’ Licenses
Administrative Suspension: Any individual found to not have the required security, in the form of sufficient insurance coverage, will have their driver’s license suspended. W. Va. St. § 17D-2A-7. Driver’s license will be suspended 30 days and until such time as sufficient insurance is obtained. W. Va. St. § 17D-2A-7.
Judgment: The Commissioner will immediately suspend the license of the judgment debtor, unless the judgment creditor consents in writing to allow the debtor to keep his license. W. Va. St. § 17D-4-5. Suspension continues until the judgment is stayed or satisfied. W. Va. St. § 17D-4-6.
Contact Information: State of West Virginia, Department of Transportation, Division of Motor Vehicles, 5707 MacCorkle Avenue, SE, Charleston, WV 25317, (304) 558-3900, http://www.transportation.wv.gov/dmv/Pages/default.aspx.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: West Virginia Automotive Crash Parts Act, W. Va. Code Ann. § 46A-6B-1 to 6.
Summary: OEM parts must be used on a vehicle for both the year the vehicle was manufactured and two subsequent years. Repair shops must give the insured a list of all parts to be used and denote whether they are OEM or non-OEM parts, and if non-OEM parts are used, a disclosure informing the consumer that the non-OEM parts were used and that the parts might invalidate the warranty on the vehicle must be included. In State of West Virginia v. Liberty Mut. Ins. Co., 2012 WL 10478650 (W.Va. Cir. Ct., Dec. 2012), a trial court ordered Boston insurance company Liberty Mutual to stop using parts salvaged from junkyards to fix newer cars.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
The Governmental Tort Claims and Insurance Reform Act: W. Va. Code § 29- 12A-1, et seq. (applies only to political subdivisions, not the State). Political subdivision employee has qualified immunity. Governmental immunity laws are confusing with patchwork of inconsistent holdings. W. Virginia Dep’t of Health & Human Res. v. Payne, 746 S.E.2d 554 (W.Va. 2013).
Notice Deadlines: Two (2) years after the cause of action arose or after the injury, death or loss was discovered or reasonably should’ve been discovered, whichever last occurs or within any applicable shorter period of time. W. Va. Code §29-12A-6.
Claims/Actions Allowed: Political subdivisions absolutely immune from policy-making acts and have qualified immunity for discretionary acts that do not violate clearly established rights and laws. Political subdivisions liable for certain types of claims: (1) Operation of motor vehicle; (2) Maintenance of public property; and (3) Negligent maintenance of roads, sidewalks, bridges, sewers and aqueducts. W. Va. Code §29-12A-4(3).
Comments/Exceptions: 2-Step Process: (1) Court identifies whether the nature of the act policy-making acts (immune) or discretionary governmental functions (Step 2). (2) If act is discretionary, court determines if plaintiff’s statutory or constitutional rights violated. If not, State is immune. An insurance policy may waive defense of immunity. W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751 (W. Va. 2014). For list of acts for which immune see §29-12A-5.
Damage Caps: No limit on economic damages. Non-economic damages limited to $500,000 per occurrence. W. Va. Code §29-12A-6. Complaint must include a demand for a judgment for the damages that the judge in a nonjury trial or the jury in a jury trial finds that the complainant is entitled to be awarded, but shall not specify in the demand any monetary amount for damages sought. W. Va. Code §29-12A-6(a).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Governmental Tort Claims Act. W. Va. Code § 29-12-1 to § 29-12-1 (1957). Article VI, § 35 of the West Virginia Constitution provides immunity to State. “The State of West Virginia shall never be made defendant in any court of law or equity.” W. Va. Code § 29-12-5 authorizes the purchase of liability insurance covering State “property, activities and responsibilities.” It requires the State Board of Risk and Insurance Management to purchase insurance policies which “shall provide that the insurer shall be barred and estopped from relying upon this immunity.” Where policy is silent on whether State and its insurer can claim the benefit of immunity, the immunity of the State is determined by the qualified immunity of a public executive official whose acts or omissions give rise to the case. Parkulo v. W. Virginia Bd. of Prob. & Parole, 483 S.E.2d 507 (W. Va. 1996).
Notice Deadlines: Claim must be brought against State within two years after cause of action arose. W. Va. Code § 29-12A-6(a).
Claims/Actions Allowed: State entities and officials are absolutely immune from policy-making acts and have qualified immunity for discretionary acts that do not violate clearly established rights and laws. Discretionary acts that do violate clearly established laws which occur outside of the public official’s scope of employment strip the official of his or her qualified immunity, but the State entity retains its immunity. If the official’s offending acts or omissions occur within the scope of the official’s employment, both the State entity and the official lose their immunity.
Comments/Exceptions: Courts have carved out exceptions to absolute grant of immunity including suits that seek recovery under and up to the State’s liability insurance coverage. Univ. of W. Virginia Bd. of Trustees ex rel. W. Virginia Univ. v. Graf, 516 S.E.2d 741 (W. Va. 1998). The Board of Risk and Insurance Management has control over all insurance covering State property, activities and responsibilities. Each policy insuring the State must provide that the insurer is barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits. The State is protected from suits by purchasing adequate insurance coverage. W. Va. Code § 29-12-5(a).
Damage Caps: Limited by insurance coverage purchased by State Board of Risk and Insurance Management. State ex rel. W.Va. Dept. of Transp., Highways Division v. Madden, 453 S.E.2d (W. Va. 1994).
General Tort Laws/Statutes
Prohibits Broad Indemnity. Applies to Construction Contracts or Agreements. W. Va. Code § 55-8-14.
Not applicable to construction bonds or insurance contracts or agreements.
Modified Joint and Several Liability. Joint and Several Liability abolished as of June 2015 and Modified Comparative Fault implemented. Liability of each defendant for compensatory damages shall be only several and not joint. Joint liability will only be imposed where there is a conscious conspiracy between two or more defendants. W. Va. Code § 55-7-13a to § 55-7-13d (amended 3/5/15).
Prior to abolishing joint and several, proportionate fault attributed by judgment to non-parties and paid by a liable defendant could be recovered from the non-party by contribution. A settling defendant could not seek contribution.
In 2015, West Virginia passed a new modified comparative fault system. W. Va. Code §§ 55-7-13 and 55-7-24. Under the new comparative fault system, liability is now “several” and defendants are only responsible for their proportion of fault. After 5/25/15, the new § 55-7-13d allows juries to consider the fault of non-parties. Any fault assigned to non-parties will be reduced from plaintiff’s recovery in proportion to the percentage of fault charged to the non-party. Additionally, where plaintiff has settled with a party or non-party before verdict, plaintiff’s recovery will be reduced in proportion to the percentage of fault assigned to the settling party or non-party. The new comparative fault system is applicable to all actions arising on or after 5/25/15. Defendant no longer needs to file third-party complaints against non-parties if they wish to assert claims for contribution in order to have fault assessed against other potentially liability parties and defendants no longer need to give notice that they intend to have the fault of non-parties considered. This may result in plaintiffs suing all potentially liable parties at the outset of litigation. The new § 55-7-13d allows jury to consider the fault of all potentially liable parties, regardless of whether the person was or could have been named a party, i.e., plaintiff can now “try the empty chair.” The fault of a non-party may be considered if (1) plaintiff settles with the non-party, or (2) the defendant provides notice no later than 180 days after service of process that a non-party was at fault. Notice must be served on all parties and filed with the court. Any recovery is reduced by the percentage of fault chargeable to the non-party and fault assessed against non-parties does not make that party liable, and may not be used as evidence, and is not admissible in any other action. W.Va. Code §55-7-13d(a)(5).
Where a tortfeasor settles with and is released by plaintiff and obtains a release for a joint tortfeasor, the release preserves the settling tortfeasor’s right of contribution against the released joint tortfeasor. No right of contribution exists against any defendant who settles in good faith with the plaintiff prior to the jury’s findings as to total damages. Modular Bldg. Consultants of W. Va. Inc. v. Poerio, Inc., 774 S.E.2d 555 (W. Va. 2015).
The two (2) year statute of limitations runs from the date of judgment. W. Va. Code 55-2-12. It applies to actions based in tort or any other legal theory seeking damages for personal injury, property damage, or wrongful death arising on or after June 2015.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Any fault chargeable to the plaintiff shall not bar recovery by the plaintiff unless the plaintiff’s fault is greater than the combined fault of all other persons responsible for the total amount of damages, if any, to be awarded. If the plaintiff’s fault is less than the combined fault of all other persons, the plaintiff’s recovery shall be reduced in proportion to the plaintiff’s degree of fault. W. Va. Code § 55-7-13a to § 55-7-13d (effective 5/15/15).
Note that this is a new law effective May 25, 2015—the date of its enactment. W. Va. Code § 55-7-13d. For causes of action accruing before May 25, 2015, West Virginia’s old joint and several liability system controls – the 50% bar rule.
Dog Bite Laws
If the dog owner allows their dog to run at large, they will be liable for damages the dog inflicted on people or property while they were at large. W. Va. Code § 19-20-13.
Economic Loss Doctrine
Intermediate Rule. Property damage to a defective product alone, which results from a sudden calamitous event attributable to the dangerous defect or design of the product itself, is recoverable under a strict liability cause of action. Anderson v. Chrysler Corp., 403 S.E.2d 189, 192-93 (W. Va. 1991). Where mere deterioration or loss of bargain is claimed, the concern is with a failure to meet some standard of quality. This standard must be defined by reference to that which the parties have agreed upon. Blake Constr. Co. v. Alley, 353 S.E.2d 724 (Va. 1987). However, where there is no claim of “deterioration or loss of bargain” or “failure to meet some standard of quality defined by reference to what the parties have agreed upon”, West Virginia courts make a distinction between economic loss and physical injury. AIU Ins. Co. v. Omega Flex, Inc., 2011 WL 2295270 (W.D. Va. 2011). Where there is no accident and physical damage, and the only loss is a pecuniary one, through loss of the value or use of the product sold, or the cost of repairing it, the courts have adhered to the rule that purely economic interests are not entitled to protection against mere negligence and have denied the recovery. Bryant Elec. Co., Inc. v. City of Fredericksburg, 762 F.2d 1192 (4th Cir. 1985). Where the plaintiff suffers property damage and economic loss, the ELD does not preclude recovery if the alleged breach of the duty does not implicate contractual provisions and if damages other than for economic losses are being sought, e.g., damage to property not subject of the contract. Factory Mut. Ins. Co. v. DLR Contracting, Inc., 2005 WL 2704502 (E.D. Va. 2005). An exception exists when there is a “sudden, calamitous event.” Capital Fuels, Inc. v. Clark Equip. Co., 382 S.E.2d 311 (W. Va. 1989).
Willful Misconduct. Liability imposed on parents when child willfully or maliciously injures person, destroys property, sets fire to forest or wooded area of another, or willfully takes property of another. W. Va. Code § 55-7A-2.
The limit of liability is $5,000.00 (limited to actual damages, court costs and interest from the date of the judgment). Child must be under 18-years-old.
Tort of Spoliation – Intentional Spoliation: West Virginia does recognize a tort of intentional spoliation of evidence as an independent tort when committed by either a party to an action or a third-party. Hannah v. Heeter, 584 S.E.2d 560, 563-64 (W. Va. 2003). The elements of the tort of intentional spoliation consists of: (1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of the evidence (4) the spoliated evidence was vital to a party’s ability to prevail in the pending or potential civil action; (5) the intent of the spoliator to defeat a party’s ability to prevail in the pending or potential civil action; (6) the party’s inability to prevail in the civil action; and (7) damages. Once the first six elements are established, there arises a rebuttable presumption that but for the fact of the spoliation the party injured by the spoliation would have prevailed in the pending or potential litigation. Id. A “pending or potential civil action” exists when the plaintiff has actually filed a claim, or where there is evidence objectively demonstrating the possibility that plaintiff was likely to pursue a claim in the future. Williams v. Werner Enterprises, Inc., 2015 WL 1000779 (W. Va. 2015).
Negligent Spoliation: West Virginia does not recognize spoliation of evidence as an independent tort when the spoliation is the caused by the negligence of a party to a civil action. Id.
Negligent Third-Party Spoliation: West Virginia does recognize spoliation of evidence as an independent tort when the spoliation is the result of negligence of a third-party and that third-party had a special duty to preserve the evidence. Id. The element of the tort of negligent spoliation of evidence by a third-party consists of: (1) the existence of a pending or potential civil action; (2) the alleged spoliator had actual knowledge of the pending or potential civil action; (3) a duty to preserve evidence arising from a contract, agreement, statute, administrative rule, voluntary assumption, or special circumstances; (4) spoliation of the evidence; (5) the spoliated evidence was vital to a party’s ability to prevail in the pending or potential civil action; and (6) damages. (There arises a rebuttable presumption that but for the fact of the spoliation of evidence the party injured by the spoliation would have prevailed in the pending or potential civil litigation if the first five element are met). Id.
Punitive Damages: In actions of tort where willful conduct affecting the rights of others appears a jury may assess exemplary, punitive, or vindictive damages. Id.
Adverse Inference: A trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence after considering: (1) the party’s degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party’s degree of fault in causing the destruction of the evidence. Id. The party requesting the instruction bears the burden of proof.
Sanctions: West Virginia Rules of Civil Procedure Rule 37 is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules. Id.
Statute of Limitations
Personal Property2 YearsW. Va. Code § 55-2-12
Personal Injury/Death2 YearsW. Va. Code § 55-2-12
Breach of Contract/Written10 YearsW. Va. Code § 55-2-6
Breach of Contract/Oral5 YearsW. Va. Code § 55-2-6
Breach of Contract/Sale of Goods4 YearsW. Va. Code § 46-2-275
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property10 YearsW. Va. Code § 55-2- 6a*
Breach of Warranty/U.C.C.4 YearsW. Va. Code § 46-2-725(1)
Workers’ Comp Third Party Case2 YearsW. Va. Code § 23-2A-1
Strict Product Liability2 YearsW. Va. Code § 55-2-12
Statute of Limitations Exceptions
*10 years from occupying or acceptance of real property by owner for actions arising out of the planning, design, surveying, observation or supervision of any construction to real property. W. Va. Code § 55-2-6a.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 2 Years. W. Va. Code § 55-2-12.
Subrogation of Medical and Disability Benefits are allowed. Kanawha Valley Radiologists, Inc. v. One Valley Bank, 557 S.E.2d 277 (W.Va. 2001). Made Whole and Common Fund Doctrines apply. Kanawha Valley Radiologists, Inc., v. One Valley Bank, 557 S.E.2d 277 (W. Va. 2001); Bell v. Federal Kemper Ins. Co., 693 F.Supp. 446 (S.D. W. Va. 1988) (made-whole waived by settlement).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1994).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: Yes. W. Va. Code Ann. § 33-6F-2 Disclosure of certain insurance information required.
Comments: Section 33-6F-2 requires an insurer to reveal the following information about each known policy of insurance (including excess or umbrella) within 30 days of a written request: (a) The name of the insurer. (b) The name of each insured. (c) The limits of the liability coverage. (d) The declaration page of the policy. The request to the insurer must be (1) in writing, (2) state the date and location of the accident, and (3) provide a copy of the accident/injury report, the insurer’s claim number, a good faith estimate of all medical expenses and wage-loss documents, and documentation of the property damage.
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. W. Va. Code Ann. § 62-1D-3.
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. W. Va. Code § 55-2-12. Discovery Rule applies.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative. W. Va. Code § 55-7-13a to § 55-7-13d (effective 5/15/15).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: No. Muzichuck v. Forest Laboratories, Inc., C.A. No. 1:07CV16, slip op. at 30 (N.D.W. Va. Jan. 13, 2015).
Innocent Seller Statute: No.
Joint and Several Liability: Several Only (With Exceptions). W. Va. Code § 55-7-13a to § 55-7-13d (amended 3/5/15).
Available Defenses: Assumption of Risk; Presumption; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Compliance With Government Standards; Seatbelts; Sophisticated User.
Restatement 2nd or 3rd?: Undecided.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Statute/Regulation: West Virginia does not have a specific statute addressing matching or a state insurance regulation or bulletins.
Caselaw: Since there is not a clear-cut rule in West Virginia, the policy terms and endorsements become paramount. In West Virginia, insurance contract interpretation rules will be applicable. When reasonable people can differ about the meaning of an insurance contract, the contract is ambiguous, and all ambiguities will be construed in favor of the insured. D’Annunzio v. Security-Connecticut Life Ins. Co., 410 S.E.2d 275 (W. Va. 1991).
Condominium/Co-Op Waiver of Subrogation Laws
Associations shall maintain property insurance and general liability insurance as to the common elements. Additionally, the insurer must waive its rights to subrogation against any unit owner and member of their household. W. Va. Code § 36B-3-113.
Damage to Property Without Market Value
Service Value: “…motorists …were liable for repair of electric power distribution facilities and … amounts recovered were not subject to depreciation or reduction based on period of time that poles had been installed and in use prior to destruction.” Appalachian Power Co. v. Morrison, 165 S.E.2d 809 (W.Va. 1969).
Intrinsic Value: The intrinsic value of a horse will change very materially over time. The market value of a horse of the same intrinsic value will also probably be very much altered in that time. Johnson v. Baltimore & O.R. Co., 25 W. Va. 570 (1885).
Sentimental Value: Plaintiff may recover damages for the loss of a dog by proving “the market value, pecuniary value or some special value.” Sentimental value not recoverable. Julian v. DeVincent, 184 S.E.2d 535 (W.Va. 1971).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
In 2015, the Supreme Court of Appeals of West Virginia (the highest appellate court in that state) held that if the insurance contract unambiguously identifies the insured, then a court may not, by judicial construction, enlarge the coverage to include other individuals foreign to the insurer. To do so would be “patently unfair” since the insurer “has a right to choose whom it will or will not insure.” The court ruled that a residential tenant is not an equitable “insured” under a landlord’s homeowners’ policy, unless specifically named in the policy. Therefore, a landlord’s insurer can maintain a subrogation action against a tenant for the damages the insurer pays to the landlord following a fire or other destruction of the leased premises caused by a negligent tenant. The tenant is neither a named nor a definitional insured of the landlord’s homeowners’ insurance policy and is not an “insured” under the landlord’s policy by the mere fact that the tenant may have an insurable interest in the leased property. Farmers & Mechanics Mut. Ins. Co. v. Allen, 778 S.E.2d 718 (W. Va. 2015).
The right of subrogation cannot arise in favor of an insurer against its own insured, since by definition subrogation arises only with respect to rights of the insured against third persons to whom the insurer owes no duty. Norfold S. Ry. Co. v. Nat’l Union Fire Ins. of Pittsburgh, 999 F. Supp.2d 906 (S.D. W. Va. 2014); Richards v. Allstate Ins. Co., 455 S.E.2d 803 (W. Va. 1995). However, in the absence of a conflict of interest between the insurer and its insured, a reimbursement right clearly stated in the policy is enforceable against the insured, even where the insured and the negligent third party are insured by the same carrier. Ferrell v. Nationwide Mut. Ins. Co., 617 S.E.2d 790 (W. Va. 2005). West Virginia applies the ASR to cases which involve separate insureds under two separate policies. Richards v. Allstate Insurance Co., 455 S.E.2d 803 (W. Va. 1995).
According to the West Virginia statute, criminal defendants may be liable fore restitution to “victims” of their criminal conduct. W. Va. St. §§ 61‐11A‐4. Per the appropriate case law, a “victim” may include an insurer who paid money to an insured/criminal defendant, due to act of arson. State v. Lucas, 496 S.E.2d 221 (W. Va. 1997).
Made Whole Doctrine
West Virginia strongly adheres to the Made Whole Doctrine. Kanawha Valley Radiologists, Inc. v. One Valley Bank, 557 S.E.2d 277 (W.Va. 2001); Kittle v. Icard, 405 S.E.2d 456 (W. Va. 1991). Under general principles of equity, in the absence of statutory law or valid contractual obligations to the contrary, an insured must be fully compensated for injuries or losses sustained before the subrogation rights of an insurance carrier will arise. Bush v. Richardson, 484 S.E.2d 490 (W.Va. 1997). West Virginia has held that parties may contract out of the Made Whole Doctrine in the terms of a policy or Plan. Id.; Kanawha Valley Radiologists, Inc., supra. When a jury renders a verdict and awards damages, that award represents the amount necessary to make the insured or Plan beneficiary whole. Bell v. Federal Kemper Ins. Co., 693 F. Supp. 446 (S.D. W.Va. 1988). It doesn’t matter if the insured values his case more than the jury did, the jury’s finding is binding and the insured is considered to be “made whole.” Id. West Virginia also holds that when an insured settles a claim with the third-party tortfeasor, the amount of damages necessary to make the plaintiff whole is fixed by the settlement agreement, and the insured cannot deny that he is made whole. Id.
In determining whether an insured or Plan beneficiary has been made whole, the West Virginia court should consider the following factors: (1) ability for the parties to prove liability; (2) comparative fault of the parties involved; (3) complexity of the issue; (4) future medical expenses; (5) nature of the injury; and (6) tortfeasor’s assets beyond third-party insurance coverage. Provident Life & Acc. Ins. Co. v. Bennett, 483 S.E.2d 819 (W.Va. 1997).
In Kittle, the West Virginia Supreme Court of Appeals addressed the issue of whether the West Virginia Department of Human Services (DHS) was entitled to be fully reimbursed for medical expenses paid on behalf of an insured from the amount the insured received in settlement from a tortfeasor. Kittle, supra. DHS argued that the trial court erred when it applied the common law made whole rule instead of.(grants DHS subrogation rights). According to DHS, the statute abrogated common law equitable principles. The Supreme Court in Kittle agreed that the West Virginia statute was applicable. However, the Court was not persuaded that the use of the term “subrogation” in the statute altered its common law meaning. According to the Court, in the absence of a clearly expressed legislative intent requiring otherwise, the term subrogation is to be given its usual and ordinary meaning. Thus, the use of the term “subrogation” in a statute merely grants the insurer a right of subrogation. Grayam v. Dep’t of Health & Human Res., 498 S.E.2d 12, 16 (W. Va. 1997) (construing amended statute to preclude application of Made Whole Rule); Cart v. Gen. Elec. Co., 506 S.E.2d 96, 99 (W. Va. 1998) (construing workers’ compensation statute to abrogate common law Made Whole Rule). The extent to which that right may be exercised, however, is to be guided by the principles of equity.
Despite the fact that Kittle was subsequently statutorily superseded, courts continue to apply its rationale and holding in all forms of subrogation dispute. Kanawha Valley Radiologists, supra. Thus, in the absence of clear statutory law or valid contractual arrangements to the contrary, an insured must be made whole for losses sustained before the subrogation rights of the insurer can be exercised. General subrogation language does not defeat application of the complete compensation rule. Only contractual arrangements which clearly and expressly create an agreement to the contrary have such an effect. Id. The Made Whole Doctrine limits operation of subrogation, under general principles of equity, and in the absence of statutory law or valid contractual obligations to the contrary, an insured must be fully compensated for injuries or losses sustained, or “made whole,” before subrogation rights of an insurance carrier arise. Porter v. McPherson, 479 S.E.2d 668 (W.Va. 1996). The equitable principle underlying this rule is that the burden of loss should rest on the party paid to assume the risk, and not on an inadequately compensated insured, which is least able to shoulder loss. Id.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Common law CSR. Collateral sources not admissible. Pack v. Van Meter, 354 S.E.2d 581 (W.Va. 1986). CSR applied as both a rule of evidence and a rule of damages. Kenney v. Liston, 760 S.E.2d 434 (W. Va. 2014). No offset of verdict of collateral source payments. Ratlief v. Yokum, 280 S.E.2d 584 (W. Va. 1981).
Recovery Of Medical Expenses Rule:
Private Insurance: Medical expense award is based on reasonable value of such expenses “incurred” or “billed” as opposed to actual expenses “paid.” Long v. City of Weirton, 214 S.E.2d 832 (W. Va. 1975). Supreme Court recently held that CSR prohibits evidence of write-offs or adjustments by insurance company. Kenney, supra. Defendant should not reap the benefits of a plaintiff’s preparation and protection.
Medicare/Medicaid: Same as private insurance.
Medical Malpractice: Statute provides for reduction in damages for payments from collateral sources. W. Va. Code § 55-7B-9a. After verdict, defendant may offer evidence of future payments from collateral sources. whereupon plaintiff may present evidence of payments or contribution made to secure these benefits. Paragraphs (d) – (f) are the calculation provisions. Paragraph (g) excludes from reduction of the verdict certain collateral sources with subrogation rights.
Harmless Error Rule: Where collateral source introduced but defense verdict – no error. Ratlief, supra.
Employee Leasing Laws
Neither the West Virginia Workers’ Compensation Act nor case law give us direct answers to employee leasing situations. However, the 4th Circuit has indicated that a worker assigned by a temporary agency is a loan servant and therefore was not entitled to bring a third-party action against the client company, who was considered to be a special employer. Maynard v. Keynard Chemical Co., 626 F.2d 359 (4th Cir. 1980).
Hospital Lien Laws
Statute: No statutory provision in West Virginia.
Comments: West Virginia is one of nine states without statewide lien laws.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP. (Monopolistic State Fund).
Statutory Employer Law: Prime contractors are liable for providing workers’ compensation benefits to an uninsured subcontractor’s employees if the prime contractor had failed to require the subcontractor to produce a certificate of insurance. W. Va. Code § 23-2-1(d).
Comments: Nothing extends the Exclusive Remedy Rule to a primary contractor or subcontractor. W. Va. Code § 23-2-1d(a).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? No.
Statute/Case Law: Crab Orchard Improvement Co. v. Chesapeake & O. Ry. Co., 115 F.2d 277, 282–83 (4th Cir.1940) (applying West Virginia law).
Rule Summary: Increased workers’ compensation premiums resulting from a third-party tortfeasor’s injuries to employees are harms that are not foreseeable or are otherwise too remote to be subject to liability.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 51.24.030 describes a workers’ compensation carrier’s subrogation lien as follows:
… indemnity and medical benefits paid as of the date of the recovery. W. Va. Code § 23-2A-1.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: W. Va. Code § 23-2A-1
Waiver Allowed? Nothing in the West Virginia Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided. Until 2006, West Virginia was a monopolistic state, so law is not well-developed.
Other Applicable Law: None.
Statute of Limitations: 2 Years. W. Va. Code § 23-2A-1.
Can Carrier Sue Third Party Directly: Undecided.
Right to Intervene: Yes.
Recovery from UM/UIM Benefits: Employee Policy: No. Employer’s Policy: Undecided.
Subrogation Against Medical Malpractice: Yes?
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: First dollar recovery after 2003 Amendment.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Statutory Reduction. W. Va. Code § 23-2A-1(b).
Future Credit: No.
Auto No-Fault: No.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent in regards to “aliens” and doesn’t mention “legal” or “illegally” employed. It broadly uses “all persons” in service of employers. W. Va. Code § 23-2-1a.
Case Law: Undecided