Revised 2016

STATE OF WEST VIRGINIA TRANSPORTATION

COMPENDIUM OF LAW

Prepared by Peter T. DeMasters, Esq.

Christopher M. Jones, Esq. Flaherty Sensabaugh Bonasso, PLLC

48 Donley Street, Suite 501 Morgantown, WV 26501

Telephone: (304) 598-0788 Fax: (304) 598-0790

2

Revised 2016

I. NEGLIGENCE

a. ELEMENTS OF PROOF FOR VICARIOUS LIABILITY UNDER AGENCY THEORY (RESPONDEAT SUPERIOR), NEGLIGENT ENTRUSTMENT, AND NEGLIGENT HIRING OR RETENTION

In West Virginia, an employer may be held liable for the acts or omissions of an employee under various theories including vicarious liability arising under the law of agency (respondeat superior) or direct liability for negligent entrustment or negligent hiring or retention.

1. Vicarious liability arising from an agency or employment relationship.

a. Elements necessary to establish vicarious liability based on an agency or employment relationship.

i. A principal or employer may be held liable for the acts or omissions of his agent or employee if the agent or employee was acting within the scope of his employment. Syl. Pt. 3, Barath v. Performance Trucking Co., 188 W. Va. 367, 424 S.E.2d 602 (1992); Syl. Pt. 2, Holstein v. Norandex, Inc., 194 W. Va. 727, 461 S.E.2d 473 (1995).

In cases involving an allegation of liability by the principal for the tortious acts of his agent, there are two questions: First, whether the alleged agent was, in fact, an agent at the time of the commission of the tort, and secondly, whether the tort was committed within the scope of employment. Barath v. Performance Trucking, 188 W. Va. 367, 424 S.E.2d 602 (1992). ‘Scope of employment’ is a relative term and requires a consideration of surrounding circumstances including the character of the employment, the nature of the wrongful deed, the time and place of its commission and the purpose of the act. Courtless v. Jolliffe, 203 W. Va. 258, 262, 507 S.E.2d 136, 140 (1998) citing, Griffith v. George Transfer & Rigging, Inc., 157 W. Va. 316, 201 S.E.2d 281 (1973).

Evanston Ins. Co. v. Powell Constr. Co., 2013 W. Va. LEXIS 294, 2013 WL 1286141 (W. Va. Mar. 29, 2013).

ii. Generally, one is not liable for the acts of one’s independent contractor. However, the West Virginia Supreme Court of Appeals has held that “the carriage of freight upon public highways in high-powered tractor trailers demonstrates a situation which involves an unreasonable risk of harm to others.” Griffith v. George Transfer & Rigging, Inc., 157 W. Va. 316, 323, 201 S.E.2d 281, 286 (1973). Specifically, the Court held in Syllabus Point 3 of Griffith

3

Revised 2016

that: “Where a public authority grants to an individual or a corporation the right to engage in dangerous activities, which right is denied the general public, the duty to safeguard the public while performing its franchise activities is not delegable, the franchise holder being responsible for the conduct of those whom it permits to act under its franchise and this includes an independent contractor.” Thus, an entity that contracts with a carrier to haul freight has a non-delegable duty to safeguard the public within West Virginia and may be held liable for the acts or omissions of its independent contractor. It should be noted that the West Virginia Supreme Court of Appeals has held that Griffith does not apply to tractor-trailers that are “running empty” or “deadheading” even if running under a lease or displaying a placard/logo. Shaffer v. Acme Limestone Co., 206 W. Va. 333, 345, 524 S.E.2d 688, 700 (1999); King v. Lens Creek Ltd. Pshp., 199 W. Va. 136, 483 S.E.2d 265 (1996).

b. Determining whether an agency relationship exists.

i. “The law indulges no presumption that an agency exists; on the contrary a

person is legally presumed to be acting for himself and not as the agent of another person; and the burden of proving an agency rests upon h[e] who alleges the existence of the agency.” Syl. Pt. 1, John W. Lohr Funeral Home v. Hess & Eisenhardt Co., 152 W. Va. 723, 166 S.E.2d 141 (1969).

ii. West Virginia does not adhere to a strict form of logo or placard liability. The existence of a logo or placard is evidence of an agency relationship, but the written terms of a lease would be considered dispositive as long as the lease does not run afoul of public policy. See Griffith v. George Transfer & Rigging, 157 W. Va. 316, 201 S.E.2d 281 (1973); see also Section (1)(a)(ii) supra. One may exercise broad supervision or control without changing the status from an independent contractor relationship to an employment relationship. “An owner who engages an independent contractor to perform a job for …[theirself] may retain broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract--including the right to inspect, to stop the work, to make suggestions or recommendations as to the details of the work, or to prescribe alterations or deviations in the work--without changing the relationship from that of owner and independent contractor, or changing the duties arising from that relationship.” Syl. Pt. 4, Shaffer v. Acme Limestone Co., 206 W. Va. 333, 524 S.E.2d 688 (1999).

4

Revised 2016

2. Negligent Entrustment

a. Elements necessary to establish liability under a theory of negligent entrustment.

i. It has been held that: “‘An owner who entrusts his motor vehicle to a person whom he knows, or from the circumstances is charged with knowing, to be incompetent or unfit to drive it is liable for injury inflicted which results from the use of the automobile by the driver if the injury was proximately caused by the disqualification, incompetency, inexperience, intoxication or recklessness of the driver.’” Syl. Pt. 5, Clark v. Shores, 201 W. Va. 636, 499 S.E.2d 858 (1997) (quoting Syl. Pt. 12, Payne v. Kinder, 147 W. Va. 352, 127 S.E.2d 726 (1962)).

3. Negligent Hiring/Retention

a. Elements necessary to establish liability under a theory of negligent hiring or negligent

retention.

i. The West Virginia Supreme Court of Appeals has held that: “An employer is subject to liability for physical harm to third persons caused by his [or her] failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.” Syl. Pt. 3, Sipple v. Starr, 205 W. Va. 717, 520 S.E.2d 884 (1999) (quoting the Restatement (Second) of Torts § 411 (1965)).

ii. Normally, “the issue of negligent hiring is an issue of fact for the jury.” Kizer v. Harper, 211 W. Va. 47, 56, 561 S.E.2d 368, 377 (2001).

b. DEFENSES

1. Admission of Agency

a. If an employer or principal has admitted the employment or agency relationship that would give rise to vicarious liability, a plaintiff may be prohibited from proceeding on an independent claim against the employer or principal for negligent hiring or negligent supervision.

i. In Taylor v. Cabell Huntington Hosp., Inc., 208 W. Va. 128, 538 S.E.2d 719 (2000), the West Virginia Supreme Court of Appeals considered a plaintiff’s claim against an employer for “negligent supervision” of a nurse. In this case, the defendant hospital did not dispute the nurse’s status as an employee and, accordingly, the defendant hospital was subject to liability under the doctrine of respondeat superior. Nonetheless, the plaintiff also sought to submit evidence in support of

5

Revised 2016

a claim that the hospital negligently supervised the employee. The trial court excluded such evidence. The jury found that the nurse did not commit a negligent act that proximately caused the plaintiff’s injury. On appeal, the West Virginia Supreme Court of Appeals declined to rule upon “the viability of a negligent supervision claim in cases governed by the doctrine of respondeat superior.” Taylor, 208 W. Va. at 135, 538 S.E.2d at 726. Since the jury found no negligence on the part of the nurse, the negligent supervision issue was rendered moot.

2. Independent Contractor

a. “One who would defend against tort liability by contending that the injuries were inflicted by an independent contractor has the burden of establishing that he neither controlled nor had the right to control the work, and if there is a conflict in the evidence and there is sufficient evidence to support a finding of the jury, the determination of whether an independent contractor relationship existed is a question for jury determination.” Sipple v. Starr, 205 W. Va. 717, 722, 520 S.E.2d 884, 889 (1999) (quoting Syl. Pt. 1, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E. 2d 218 (1976)).

3. Traditional Tort Defenses

a. Depending on the particular facts of the case, traditional tort defenses may also apply such as comparative fault, failure to mitigate damages, superseding and intervening cause, etc.

b. Comparative Fault/Contributory Negligence

i. West Virginia operates under a modified comparative fault standard. W. VA. CODE § 55-7-13a(a) (2015). Therefore, recovery in personal injury, property damage, or wrongful death cases is based upon the percentage of fault of each applicable party. W. VA. CODE § 55-7-13a(b) (2015). However, in order to recover damages, the plaintiff’s own negligence or fault must not be equal to or greater than the defendant's negligence. If the plaintiff is less than 50% at fault, the award is decreased by the plaintiff’s percentage of fault. If the plaintiff is 50% or more at fault, she/he cannot recover. See W. VA. CODE §55-7-13c(c); Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979).

c. Joint and Several Liability

i. As a result of the 2015 Legislative session, joint liability for compensatory

6

Revised 2016

damages was abolished. W. Va. Code § 55-7-13c(a) (2015).1 However, there are several exceptions to this prohibition. Joint liability may be imposed on two (2) or more defendants who “consciously conspire and deliberately pursue a common plan or design to commit a tortious act or omission.” W. Va. Code § 55-7-13c(a) (2015). If a defendant drives a vehicle under the influence of alcohol, a controlled substance, or any other drug or combination thereof, which is a proximate cause of the plaintiff’s damages, joint and several liability shall apply. W. Va. Code § 55-7-13c(h)(1) (2015). A defendant whose acts or omissions constitute criminal conduct or an illegal disposal of hazardous waste (pursuant to W. Va. Code § 22-18-3) which is the proximate cause of the plaintiff’s damages shall also be subject to joint and several liability. W. Va. Code § 55-7-13c(h)(2) (2015).

ii. To calculate the judgment amount attributable to each defendant pursuant to the modified comparative fault standard, the Court multiplies the total amount of compensatory damages recoverable by the plaintiff by the percentage of each defendant’s fault, which is the maximum amount recoverable against her or him. W. Va. Code § 55-7-13c(b) (2015). However, should the plaintiff’s fault equal or exceed that of the combined fault of all other persons responsible for the total amount of damages, then the plaintiff is barred from recovery. W. Va. Code § 55-7-13c(c) (2015). If the plaintiff’s fault is less than the combined fault of all other persons, then the plaintiff’s recovery is reduced in proportion to her/his degree of fault. Id.

iii. Importantly, if a plaintiff is unable to collect from a liable defendant through

good faith efforts, the plaintiff may move for “reallocation” of any uncollectible amount among the other parties found liable. W. Va. Code § 55-7-13c(d) (2015). The plaintiff must do this “not later than one year after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later.” Id. If the Court determines that part, or all, of the defendant’s proportionate share is uncollectible from that defendant, the uncollectible amount shall be reallocated among the other liable parties, including the plaintiff, according to their percentages at fault. W. Va. Code § 55-7-13c(d)(1) (2015). However, the Court may not reallocate to any defendant an uncollectible amount greater than the defendant’s percentage of fault, multiplied by the uncollectible amount. Id. Additionally, “[t]here shall be no reallocation against a defendant whose percentage of fault is equal to or less than the plaintiff’s percentage of fault,” nor can fault allocated to an immune defendant, or a defendant

1 Section 13c does not apply to the following: W. VA. CODE §29-12A-1, et seq. (the Governmental Tort Claims

and Insurance Reform Act); W. VA. CODE §46-1-1, et seq. (the Uniform Commercial Code); and W. VA. CODE §55-7b-

1, et seq. (the Medical Professional Liability Act).

7

Revised 2016

whose liability is limited by law, be reallocated to another defendant. Id. W. Va. Code § 55-7-13c(g) (2015). The parties may conduct discovery on the issue of collectability before a hearing on the reallocation motion. W. Va. Code § 55-7-13c(d)(2) (2015).

c. DAMAGES

1. Collateral Source Rule

a. Full Amount of Medical Bills May be Recovered

i. In Kenney v. Liston, 233 W. Va. 620, 760 S.E.2d 434 (2014), the Court held that

medical bills are recoverable in total regardless of the amount actually paid by the plaintiff’s health insurer. This resolves an argument that many defense counsel have advanced–that only the amount actually paid by the insurer should be recoverable as damages.

ii. “A person who has been injured by the tortious conduct of a culpable tortfeasor is entitled to recover from the tortfeasor the reasonable value of medical and nursing services necessarily required by the injury. This recovery is for the reasonable value of the services and not for the expenditures actually made or obligations incurred.” Id. Syl. Pt. 6.

iii. Where an injured person’s health care provider agrees to reduce, discount or write off a portion of the person’s medical bill, the collateral source rule permits the person to recover the entire reasonable value of the medical services necessarily required by the injury. The tortfeasor is not entitled to receive the benefit of the reduced, discounted or written-off amount. Id. at Syl. Pt. 7.

iv. The basis for the Court’s opinion is that medical bills are recoverable if “reasonable and necessary.” Justice Loughry dissents, stating “[t]he majority’s conclusion that medical bills that include a “write-off” or discount–an amount no one pays–constitutes the ‘reasonable value’ of the medical services rendered defies both logic and common sense.” To the extent counsel have made the “net” argument, this opinion resolves the issue and makes clear the total amount of a bill is recoverable. Id. at 453 (Loughry, J. dissent).

2. Employer’s and principal’s exposure to punitive damages for the malicious acts of its

employee or agent.

a. A jury may award punitive or exemplary damages against a defendant to punish willful,

8

Revised 2016

wanton, or malicious behavior. “‘In actions of tort, 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 authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.’” Syllabus Point 6, Crawford v. Snyder, 228 W. Va. 304, 719 S.E.2d 774 (2011) (quoting, Syllabus Point 4, Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895)).

b. An employer or principal may be liable for punitive damages arising from the conduct

of his employee or agent if the acts are ratified or authorized. “‘If a master knowingly employs or retains a careless and incompetent servant, he thereby impliedly authorizes or ratifies his negligent acts, committed in the course of his employment, and, if the servant’s negligence is wanton and wilful [sic] or malicious, the master is liable for exemplary or punitive damages.’” Syl. Pt. 2, Addair v. Huffman, 156 W. Va. 592, 195 S.E.2d 739 (1973) (quoting Syl. Pt. 4, Hains v. Parkersburg, Marietta & Interurban Ry. Co., 75 W. Va. 613, 84 S.E. 923 (1915)). See also, Jarvis v. Modern Woodmen of Am., 185 W. Va. 305, 406 S.E.2d 736 (1991).

II. DELIBERATE INTENT

Employers must also be familiar with the deliberate intent exception to the statutory workers’ compensation immunity. Pursuant to this exception, if an employee can prove that the employer acted with “deliberate intent” to injure the employee, the employer is stripped of its workers’ compensation immunity. W. Va. Code §23-4-2(d)(2) (2015). “[A]n employee, widow, widower, child, or dependent has a deliberate intention cause of action against the employer for injury or death of an employee. In the event of an employee's death, the decedent's estate has a claim." Syl. Pt. 3, in part, Murphy v. E. Am. Energy Corp., 224 W. Va. 95, 680 S.E.2d 110 (2009). See also W. Va. Code § 23-4-2(c) (2015). The traditional negligence standard is insufficient for the employee to prevail in a deliberate intent action, as the statute delineates the two (2) methods by which an employee’s claim may succeed.

a. Two Types of Deliberate Intent Causes of Action

1. Under a Section (A) claim,2 an employee can prove the employer or person against whom liability is asserted acted with a “consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to the employee.” W. Va. Code § 23-4-2(d)(2)(A) (2015). This standard requires the showing of an actual, specific intent and is not satisfied by either allegation or proof of conduct that produced a result not specifically intended, conduct that was negligent, no matter how gross or aggravated, or willful, wanton or reckless misconduct. Id.

2 Prior to the 2015 legislative revisions to the deliberate intent statute, claims alleging an employer acted with a

“consciously, subjectively and deliberately” formed intention were often termed “Section (i)” or “single (i)” claims.

However, in the revised statute, the former Section (i) is now Section (A) in the Code.

9

Revised 2016

i. The employer and/or individual supervisors/management employees can be

held liable under Section (A). Often times, where complete diversity exists between the employer and the plaintiff employee, the plaintiff will assert claims against individual supervisors under Section (A) in order to defeat diversity jurisdiction.

ii. In order to establish a Section (A) claim, a plaintiff must overcome a high threshold. Tolliver v. Kroger Co., 201 W. Va. 509, 522, 498 S.E.2d 702, 715 (1997). “Neither negligence, recklessness nor willful misconduct satisfies the requirements of this subsection – instead, in a single [A] claim a plaintiff must prove that an employer or other person granted immunity actually tried to injure or kill him.” Williams v. Harsco Corp., Civil Action No. 1:10CV206, 2011 U.S. Dist. LEXIS 79858, *6, 2011 WL 3035272 (N.D. W. Va. July 22, 2011)(citing Syl. pts. 7-9, Tolliver, 201 W. Va. 509, 498 S.E.2d 702 (1997)); see also Dotson v. Elite Oil Field Servs., 91 F. Supp. 3d 865 (N.D. W. Va. 2015)(“At best, the Dotsons have alleged that Hess knew about the truck's faulty brakes, but nonetheless recklessly or negligently assigned it to Dotson. They have not alleged that Hess purposely assigned Dotson to a job with the intent of causing him serious injury, harm, or death from a likely crash . . . . The complaint therefore falls far short of the actual, specific intent necessary to satisfy Section I.”)

2. Under a Section (B) claim,3 an employee must establish all elements of a five-part

test found in W. Va. Code § 23-4-2(d)(2)(B) to maintain a deliberate intent cause of action. Generally, these elements are: (1) the existence of a specific unsafe working condition which presented a high degree of risk and strong probability of serious injury; (2) actual knowledge by the employer (through its supervisors) of the specific unsafe working condition prior to the injury and of the strong probability of injury from the unsafe working condition; (3) a violation of a state or federal safety rule or a written commonly accepted and well-known safety standard; (4) an intentional exposure of the employee to the unsafe working condition; and (5) a serious compensable injury directly and proximately caused by the specific unsafe working condition.4 W. Va. Code § 23-4-2(d)(2)(B). The Plaintiff must prove all five

3 Prior to the 2015 legislative revisions to the deliberate intent statute, claims premised on the five-part test were often

termed “Section (ii)” or “single (ii)” claims. However, in the revised statute, the former Section (ii) is now Section

(B) in the Code. 4 The statutory language provides in part:

(i) That a specific unsafe working condition existed in the workplace which

presented a high degree of risk and a strong probability of serious injury or death;

(ii) That the employer, prior to the injury, had actual knowledge of the existence

of the specific unsafe working condition and of the high degree of risk and the

10

Revised 2016

elements; failure to prove one element is grounds for summary judgment. See W. Va. Code § 23-4-2(d)(2)(iii)(B).

i. The law relating to deliberate intent underwent substantial amendment as a result of the 2015 legislative session. Notable changes made to the pre-existing deliberate intent statute concerned (i) how “actual knowledge” is established; (ii) what constitutes violation of safety statutes and standards; (iii) what constitutes “intentional exposure;” (iv) the definition of “compensable injury;” and (v) pleading requirements regarding the “verified statement.”

ii. Actual Knowledge—This must be specifically proven and not deemed or presumed. W. Va. Code § 23-4-2(d)(2)(B)(ii)(I) (2015). It may be shown by evidence of “intentional and deliberate failure to conduct an inspection, audit or assessment required by state or federal statute or regulation . . . specifically intended to identify each alleged specific unsafe working condition.” Id. “Actual knowledge” is not established by what an employee’s immediate supervisor or management personnel “should have known,” had reasonable care or more diligence been exercised. W. Va. Code § 23-4-2(d)(2)(B)(ii)(II) (2015). Additionally, proof of an immediate supervisor or management personnel’s knowledge of “prior accidents, near misses, safety complaints or citations from regulatory agencies must be proven by documentary or other credible evidence.” W. Va. Code § 23-4-2(d)(2)(B)(ii)(III) (2015).

iii. Violation of Safety Statutes and Standards—If the specific unsafe working

condition relates to a commonly accepted and well-known safety standard within the industry or business of the employer, “it must be a consensus written rule or standard promulgated by the industry or business of the employer, such as an organization comprised of industry members.” W. Va.

strong probability of serious injury or death presented by the specific unsafe

working condition.

…

(iii) That the specific unsafe working condition was a violation of a state or federal

safety statute, rule or regulation, whether cited or not, or of a commonly accepted

and well-known safety standard within the industry or business of the employer.

…

(iv) That notwithstanding the existence of the facts set forth in subparagraphs (i)

through (iii), inclusive, of this paragraph, the person or persons alleged to have

actual knowledge under subparagraph (ii) nevertheless intentionally thereafter

exposed an employee to the specific unsafe working condition; and

(v) That the employee exposed suffered serious compensable injury or

compensable death as defined in section one, article four, chapter twenty-three as

a direct and proximate result of the specific unsafe working condition.

…

11

Revised 2016

Code § 23-4-2(d)(2)(B)(iii)(I) (2015). If the specific unsafe working condition relates to a violation of a state or federal safety statute, rule or regulation, it must be “specifically applicable to the work and working condition involved” and “intended to address the specific hazard(s) presented by the alleged specific unsafe working condition.” W. Va. Code § 23-4-2(d)(2)(B)(iii)(II) (2015).

iv. Compensable Injury—It can only be established by one of four (4) methods

delineated by statute as follows:

1. It is shown that the injury, independent of any preexisting impairment:

a. Results in a permanent physical or combination of physical and psychological injury rated at a total whole person impairment level of at least thirteen percent (13%) as a final award in the employee’s workers’ compensation claim; and

b. Is a personal injury which causes permanent serious disfigurement, causes permanent loss or significant impairment of function of any bodily organ or system, or results in objectively verifiable bilateral or multi-level dermatomal radiculopathy; and is not a physical injury that has no objective medical evidence to support a diagnosis; or

2. Written certification by a licensed physician that the employee is

suffering from an injury or condition that is caused by the alleged unsafe working condition and is likely to result in death within eighteen (18) months or less from the date of the filing of the complaint. The certifying physician must be engaged or qualified in a medical field in which the employee has been treated, or have training and/or experience in diagnosing or treating injuries or conditions similar to those of the employee and must disclose all evidence upon which the written certification is based, including, but not limited to, all radiographic, pathologic or other diagnostic test results that were reviewed.

3. If the employee suffers from an injury for which no impairment rating may be determined pursuant to the rule or regulation then in effect which governs impairment evaluations pursuant to this chapter, serious compensable injury may be established if the injury meets the definition in sub-clause (I)(b).

12

Revised 2016

4. If the employee suffers from an occupational pneumoconiosis, the employee must submit written certification by a board certified pulmonologist that the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis and that the occupational pneumoconiosis has resulted in pulmonary impairment as measured by the standards or methods utilized by the West Virginia Occupational Pneumoconiosis Board of at least fifteen percent (15%) as confirmed by valid and reproducible ventilatory testing. The certifying pulmonologist must disclose all evidence upon which the written certification is based, including, but not limited to, all radiographic, pathologic or other diagnostic test results that were reviewed: Provided, that any cause of action based upon this clause must be filed within one year of the date the employee meets the requirements of the same. W. Va. Code § 23-4-2(d)(2)(B)(v) (2015).

3. Furthermore, when a plaintiff alleges a Section (B) claim, the Plaintiff must submit a

verified statement from a person with “knowledge and expertise of the workplace safety statutes, rules, regulations and consensus industry safety standards specifically applicable to the industry and workplace involved in the employee’s injury.” W. Va. Code § 23-4-2(d)(2)(C)(i) (2015). The statement must set forth opinions and information on:

i. The person’s knowledge and expertise of the applicable workplace safety statutes, rules, regulations and/or written consensus industry safety standards;

ii. The specific unsafe working condition(s) that were the cause of the injury that is the basis of the complaint; and

iii. The specific statutes, rules, regulations or written consensus industry safety

standards violated by the employer that are directly related to the specific unsafe working conditions: Provided, however, That this verified statement shall not be admissible at the trial of the action and the Court, pursuant to the Rules of Evidence, common law and subclause two-c, subparagraph (iii), paragraph (B), subdivision (2), subsection (d), section two, article four, chapter twenty-three of this code, retains responsibility to determine and interpret the applicable law and admissibility of expert opinions. Id.

4. Causes of action are to be brought either in the circuit court of the county in which

the alleged injury occurred or where the employer’s principal place of business is located. W. Va. Code § 23-4-2(e) (2015). Discovery may be bifurcated upon the employer’s request to resolve liability issues prior to those concerning damages. W. Va. Code §23-4-2(d)(2)(C)(iii) (2015). The amendments resulting from the 2015

13

Revised 2016

Legislative session apply to all injuries occurring on or after July 1, 2015. W. Va. Code §23-4-2(g) (2015).

b. Damages

1. Defendants are entitled to reduce or offset any verdict by amounts paid by settling co-defendants. In addition, the deliberate intent statute allows for verdicts to be reduced by the amounts received or receivable by the plaintiff through the workers’ compensation system. See W. Va. Code § 23-4-2(c); Roberts v. Consolidation Coal Co., 208 W. Va. 218, 539 S.E.2d 478 (2000); Cecil v. D & M, Inc., 205 W. Va. 162, 517 S.E.2d 27 (1999); Mooney v. Eastern Associated Coal Corp., 174 W. Va. 350, 326 S.E.2d 427 (1984).

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice.