CHARLESTON – As the West Virginia Legislature’s 2017 regular session grinds toward its conclusion, the state budget and tax plans dominate the headlines.
But, some bills related to the legal community still are moving through the legislative process. And March 29 is the last day most bills can be passed in their house of origin.
House Bill 2850 passed the House Judiciary on March 22 and was sent to the full House for consideration. The measure would limit product liability against a seller unless it also is the manufacturer.
“If you didn’t make it, you’re simply reselling a good,” said Roman Stauffer, executive director of West Virginia Citizens Against Lawsuit Abuse. “In other words, you aren’t liable for fault if you simply sell a product.”
A group for state trial lawyers is not happy about a bill recently passed by the state Senate.
Senate Bill 216 has been called the “As Is” cars bill. It would allow used car dealers to sell vehicles “as is,” a change from current law that requires a vehicle to be ready “roadworthy and drivable” for a reasonable period of time. The bill would permit the sale of defective vehicle as long as those problems are disclosed.
“Most consumers don't read the fine print, and the defects can be major ones that make the vehicle unsafe to drive,” West Virginia Association for Justice Executive Director Beth White said. “Instead of helping responsible used car dealers who treat their customers fairly and provide good warranties, SB 216 protects the shady ones who cheat their customers."
WVAJ President Jane E. Peak says the bill would remove current minimum requirements that the vehicle be "in good working order" and "operate properly in normal usage for a reasonable period of time."
“If passed by the House, SB 216 would permit dealers to sell used, defective vehicles, including defects that make the vehicle unsafe to drive, if those problems are disclosed to the buyer,” Peak said. “Any repairs would be the buyer’s responsibility once the ‘as is’ disclaimer is signed.
“Used car dealers should not be allowed to sell vehicles that can’t even pass state inspection.”
Another bill focused on changes to medical monitoring laws.
SB 236 would tighten criteria about who can file such claims. It has passed the Senate and was sent to the House Judiciary.
Stauffer said WV CALA is optimistic about the chances of the bill’s passage.
“Senator (Corey) Palumbo suggested some changes to the bill making it so that with a medical monitoring claim, there is a series of standards to meet before it can go forward,” he said. “It has strong bipartisan support, and it’s something that a lot of people support.”
White said the bill would require money awarded for medical monitoring to be set aside in trusts to cover medical expenses.
“While we do not believe the changes were necessary, the bill addressed concerns presented by business interests, but still preserves the ability for those who have been exposed to file their cases,” she said.
The WVAJ also is being critical of the Legislature’s “unprecedented and unrelenting attack” on the West Virginia Consumer Credit and Protection Act and similar laws.
“Pending legislation would gut these laws and leave consumers powerless when they have been cheated, misled or have lost money,” WVAJ President Jane E. Peak said. “West Virginia lawmakers' first priority should be protecting their constituents and our state's residents, not bad businesses who break the law to profit at the expense of our consumers. Without these important protections in place, many West Virginians will face harassment, financial ruin or bankruptcy. It's just plain wrong.”
They cite SB 563, which they say which would strip key provisions from the WVCCPA and “encourage the abuse and harassment of state consumers.”
“The WVCCPA protects West Virginians from predatory lenders, dishonest sellers, illegal and abusive debt collection practices, unreasonable and unfair contracts, illegal charges and fees, warranty violations and more,” Peak said. “Enacted in 1974 and based on a national model law, the WVCCPA protects thousands of West Virginians annually.
“One of its worst provisions reduces penalties and fines for businesses that break the law. These penalties were reduced by nearly 80 percent just two years ago. … The revised law addressed businesses’ concerns while ensuring that it still protected consumers. It was negotiated in good faith, but just two years later state consumers are once again facing the threat of losing one of their most important consumer protection laws.”
Peak said these changes would make it so “bad businesses will no longer be held accountable.”
“The State Senate is bailing them out and giving immunity to the big, national banks and the zombie debt collectors who are among the worst violators of our consumer protection laws,” she said.
Another bill in the WVAJ’s crosshairs is SB 217, a measure about manufactured housing that is similar to the “As Is” bill for cars. On March 23, the Senate Judiciary Committee passed the bill to the full Senate.
“As with the vehicles, consumers would be stuck with any repairs needed to make the home habitable including structural defects, bad wiring or mold and water damage,” Peak said. “It could also include used trailers that housed meth labs prior to their sale. In addition to health risks, structural defects could also lead to an elevated risk of fire and wind damage. Often these issues are unknown without proper inspection.
“Proponents argue that sales like this make vehicles and mobile homes more affordable, but these are the very consumers who would not be able to afford additional repairs for defects buried in the fine print or not even known at the time of purchase. Once you sign the agreement, you're stuck. If you've spent all you have on the initial purchase, how can you pay for expensive repairs?
Peak said these “as is” vehicles and mobile homes would be a danger to the owners, but children and others as well.
“We cannot afford to cut corners at the expense of safety,” she said.
Another bill being pushed by WV CALA relates to the placement of non-partisan judicial races on election ballots.
Last year was the first time judicial elections in West Virginia were non-partisan. And on the 2016 primary ballots, those races all were toward the end of the ballot.
HB 2675 would move these races closer to where they traditionally have been on the ballot. It is before the entire House after passing out of the House Judiciary Committee.
For example, a state Supreme Court election race would be placed after the other statewide races on the ballot.
“We believe this is a good reform,” Stauffer said. “We saw it in last election. Some of those primary ballots can be very long, and this reform moves the judges up to where they have been before on the ballot.”
Another bill endorsed by WV CALA is HB 2678, which fixes the rate for pre- and post-judgment interest. In short, it would simplify the current formula and set the interest rate at 2 percentage points above the federal rate used as long as it isn’t higher than 9 percent or lower than 4 percent. It has passed both houses and awaits Gov. Jim Justice’s signature.
Stauffer said bills creating an intermediate court of appeals still are the group’s top priority. But those won’t happen this session.
“We understand they’re focused on budget proposals, tax proposals and balancing the budget,” Stauffer said. “We believe once there is stabilization in state finances, we’ll get an intermediate court of appeals. I think as long as we continue to have the type of budget constraints we currently are under, getting this is going to be tough.
“It’s just the timeline we’re up against right now. The leadership in both houses are trying to move quite a few bills, and others things are lagging because of the needed focus on fixing the budget.”