- posted: Jan. 23, 2017
In 2015, West Virginia enacted new rules that significantly changed the apportionment of fault in negligence actions. Under what is known as a modified comparative fault standard, plaintiffs who bear more than 50 percent fault are barred from recovery, even if the other party is assigned some fault for the incident. Recovery, when available, continues to be reduced by the percentage of that plaintiff’s fault.
For example, if damages are $10,000 and Party A is held to be 30 percent at fault for an auto accident while Party B is 70 percent at fault, Party A is entitled to $7,000 and Party B is not entitled to a recovery because they have majority responsibility for the accident.
A change in the law is that fault can be attributed to nonparties, so Party A might be assigned 60 percent fault with 30 percent fault to Party B and 10 percent fault to Nonparty C. In this case, Party A could only collect $6,000 from Party B.
When more than one defendant exists, the state has altered the liability rules to limit exposure to the level of a party’s participation. Previously, under joint liability, two defendants working in concert could be held completely liable for damages regardless of their specific share of fault. Now, West Virginia restricts damages to the share of fault that each party bears.
In a situation where $50,000 of damages were incurred and two defendants shared equal liability, the outcome is vastly different than it once was:
- Old joint liability rule — Defendant A or Defendant B would face potential liability of up to $50,000.
- New several liability rule — Under most circumstances, the maximum liability for both Defendant A and Defendant B would be $25,000, based on their 50 percent responsibility for the $50,000 claim.
An exception to the rule occurs when defendants consciously engage in a conspiracy with each other. This enables a finding of joint liability.
Pullin, Fowler, Flanagan, Brown & Poe, PLLC has delivered comprehensive insurance defense representation to West Virginia and Ohio clients for more than 25 years. To schedule a consultation, call 304-344-0100 or contact us online.