Restore Balance Solution

Civil Justice Reforms

West Virginia has taken a number of steps to improve the state's legal environment.. A series of reform bills has been enacted to address the need for civil justice reform.  Key among these are new laws eliminating third-party suits against insurance companies and clarifying grounds for a deliberate intent suit. Additional reforms still must be passed to bring West Virginia into step with the rest of the nation. Provided is a list of reforms enacted over the past several years in West Virginia:

Medical Malpractice – (H.B. 2122)
Comprehensive reforms were enacted to stem the crisis involving medical malpractice.  The reforms have resulted in a decline in the number of medical malpractice lawsuits, a substantial reduction in malpractice premiums and a reversal in the exodus of doctors from the state.

Third-Party Disputes – (S.B. 418)
Enacted legislation to end third-party bad faith private causes of action in our state. This legislation empowered the Insurance Commissioner to be the exclusive remedy to resolve claims by individuals against insurance companies for bad faith.  This is an approach taken in 44 other states.

Joint and Several Liability – (S.B. 421)
Limits a person’s responsibility for only up to 30 percent of the degree of fault and amount of damages as determined by a jury.  First step in bringing West Virginia in line with how other states treat joint and several liability.

Deliberate Intent -- (S.B. 625)
Restored the law to true deliberate intent by adding definitions to clarify ambiguous language. Litigation has increased against employers where alleged conduct of the employer was neither intentional nor deliberate.  This increased litigation drives up the cost for employers and makes insurance unavailable.

Right To Cure -- (S.B. 456)
Restricts lawsuits if a merchant cures a complaint within 30 days. In West Virginia , lawsuits are filed against a merchant even when the merchant is working to correct the problem.  When a merchant makes a written offer to correct complaints, then litigation should not start until the merchant has had at least 30 days to cure the problem.

Innocent Prescriber – (H.B. 2011)
Narrowed the exemption from liability for persons who only write prescriptions for medication and not responsible for their chemical constituency.

Physician Dialogue Provision – (H.B. 3174)
Provides that expressions of apology, responsibility, sympathy, condolence or a general sense of benevolence made by a health care provider to a patient shall be made inadmissible as evidence of admission of liability

Pre- and Post Judgment Interest – (Com. Sub. For S.B. 576)
Dealing with pre- and post judgment interest, the law applies to judgments and establishes a regional economic standard with the secondary discount rate of interest from the Fifth District Federal Reserve plus three percentage points…however, starting Jan. 1, 2007, the interest rate cannot drop below 7 percent or rise above 11 percent.  The bill also provided a pre-judgment interest for written agreements between parties to be established in that agreement and post-judgment interest to be pursuant to the formula set out above.  This legislation also brought West Virginia more in line with how judgment interest is handled in other states.

Employer Reference Immunity – (Com. Sub. for H.B. 4296)
Provides immunity from civil liability for employers who provide adverse employee references as long as the information is contained in the writing, is factual and is shared with an employee in writing. This legislation is important for providing greater access to information for both good employees and about employees who have caused harm in the workplace.  With recent lawsuits against employers for negligence in the hiring practice, this bill will provide comfort particularly to segments of the health care industry where abusive or dangerous behavior can hard beneficiaries of health services.  This bill protects the most vulnerable members of society -- children in day care and the elderly in care facilities.

Appeal Bonds -- (Com. Sub. for S.B. 194)
Provides for a $50 million dollar cap on appeals bonds, which will be adjusted for inflation.  The bill has an effective date of July 1, 2007.

Forum non Conveniens -- (H.B. 2956)
Establishes procedures for a judge may use to determine “venue” of out-of-state lawsuits being filed in West Virginia .  This bill is designed to help preserve West Virginia courts for state taxpayers.    

Additional Reforms

Additional reforms still must be passed to bring West Virginia into step with the rest of the nation. These include removing collateral source restrictions, limiting punitive damages, placing higher limitations on joint and several liability. Added reforms also are critically needed because tort costs eat up more and more of our state’s economy, employers have to spend more and more money protecting themselves against lawsuits and less on salaries for workers, capital improvements or plant expansions.  As employers determine that the risks and costs of actual and potential liability litigation are greater in West Virginia than in other states, they – like the doctors – decide that doing business in West Virginia is not worth the costs, lawsuits and hassles that result.

West Virginia has been out of step with the rest of the other states in terms of enacting fair and balanced civil justice reforms. This is most evident in a maps that the West Virginia Chamber of Commerce prepared: Civil Justice Reforms.

West Virginia’s litigious environment is eroding the state’s economic base and further tarnishing its business climate.  This situation also is forcing employers to examine how West Virginia's system of largely uncontrolled lawsuits affects their ability to do business, employ people and grow in our state.  Without enactment of meaningful civil justice – or “tort” – reforms, West Virginia will become an increasingly more unattractive place to do business.  

Solution:

No one is suggesting limits on the amount of damages injured parties should receive to cover the proven costs of actual damages.  People with legitimate claims should be compensated for injuries or losses caused by dangerous or negligent products and professionals.  Products that injure people and companies whose actions cause needless harm and professionals who injure should compensate the victims. But West Virginia should enact policies to control our uncontrolled civil litigation system.  Other states have led the way with policies that give injured parties legitimate access to the courts without imposing unnecessarily high costs on employers that have a chilling effect on their ability to create and keep jobs.  Some of those are among the list that follows.  

Click to read a comprehensive package of reforms that will improve our economic future.

U.S. Chamber Members Say Legal Reform Top Priority
Survey Results Highlight Need for Class Action Legislation
(Click to read February 2, 2005 press release)