UPDATE: Legal reform bills moving through Capitol

CHARLESTON – As the midway point of the West Virginia legislative session arrives, lawmakers continue to make good on their promise of legal reform.

One piece of legislation moving through the process is House Bill 2010, which would change the election of all judges in West Virginia – from state Supreme Court justices to magistrates – to non-partisan. The House of Delegates has passed the bill on a 90-9 vote and sent it to the state Senate for consideration.

The West Virginia Chamber of Commerce long has been a supporter of that idea.

“Unfortunately, West Virginia has acquired over the years a reputation as a place where judicial justice is not administered on a fair and equal basis,” W.Va. Chamber President Steve Roberts said. “The West Virginia Chamber has long supported efforts to change that reputation and bolster our economic image and attract new jobs to the state.

“Currently, West Virginia is only one of seven states that still selects the judiciary on a partisan ballot. The Chamber strongly believes it is past time to remove partisanship from the West Virginia judiciary.”

The president of the statewide group of trial lawyers disagrees.

“Nonpartisan elections will do nothing to decrease the amount of money spent in our judicial elections," West Virginia Association for Justice President Anthony Majestro said. "Other states that switched to nonpartisan elections saw increases in the amount of money spent.

"It will also increase the likelihood of independent expenditures, with special interests hiding behind misleading names and refusing to disclose who has funded the effort."

Majestro said it is important to have the best candidates run for these seats.

"The current system of partisan elections helps ensure that both Democratic and Republican state and county leaders work hard to find these candidates and help them run good campaigns," he said. "Party affiliation could also help voters decide which candidate they would prefer to support since judicial campaigns are different from other political campaigns.

"There are restrictions that prohibit judicial candidates from disclosing their positions on issues to voters, but party identification may help inform voters where a judicial candidate may stand on particular issues."

As for other bills, Gov. Earl Ray Tomblin signed Senate Bill 3 on Feb. 9 regarding premises liability. The measure makes property owners no longer liable for injuries or death if a person trespasses on their property.

The House has passed HB 2002 regarding joint and several liability. It would ensure that defendants only are responsible for their share of damages. Currently, defendants could be held responsible for more damages if some other defendants can’t pay their share. The bill has been sent to the Senate for consideration.

“The Senate bill eliminates personal responsibility and accountability," Majestro said. "When several wrongdoers cause an injury or financial loss, each should accept responsibility and pay up. If one is unable to pay for the harm caused, then the other wrongdoers involved should pay that part, too.

"When they don’t, it shifts the financial burden from those responsible onto the person or business that is harmed and onto taxpayers. Under the proposed legislation, plaintiffs could recover less than 50 percent of what’s owed.  Those people are getting hurt twice – one by the misconduct and then by not being compensated for it.  That’s wrong.”

“The proposal also encourages named defendants to find and name additional defendants to the case. Those responsible will try to drag more defendants into the case, including those who have almost no responsibility, in order to shift their misconduct onto others.  Litigation will be more complex, expensive and harder to settle as courts attempt to sort out the relative fault of all these defendants.  It also removes our state’s long-standing doctrine for good faith settlement.  Those companies that wish to accept responsibility, settle their cases and exit the litigation won’t be able to do so.  They will be forced to stay in through the entire trial and pay attorneys fees while others debate their liability.”

An “open and obvious” bill also is under consideration. SB 13 would reinstate the law that in place for more than a century before a November 2013 state Supreme Court decision known as Hersh v. E-T Enterprises.

The bill would allow a property owner not be responsible for injuries to others from dangers that are “open, obvious reasonably apparent or as well known to the person injured as they are to the owner.” It does have an exception if the injury were caused by a violation of current code or law and safety measures.

The House amended the Senate bill slightly, so it was sent back to the Senate for approval.

Majestro said his group sees two major problems with this bill.

“First, not everyone is capable of fully understanding the risks that a hazard may pose," he said. "Children, the mentally and physically-challenged and seniors may not understand, and there is no flexibility under the proposal. They are going to be far more vulnerable than the rest of us — and if your child or elderly parent is hurt, there’s nothing you will be able to do.

“Second, this thing is going to kill our property values. Think about it. No one is going to be required to keep up their property.  Dilapidated and dangerous property conditions will be a real threat to public safety and will pull all property values in the area down in the gutter with them.”

SB 6 is a bill that “controls the cost of liability insurance and to maintain access to affordable health care services for West Virginians.” It passed on a 31-1 vote.

But not everyone is happy about the measure. The West Virginia Association for Justice has voiced its disappointment, saying it limits claims against nursing homes to just a $250,000 cap on noneconomic damages.

“It is outrageous that the West Virginia Senate would pass legislation to limit accountability for nursing homes at a time when the number of severe deficiencies in our state facilities has doubled in just four years,” WVAJ President Anthony Majestro said. “This legislation does absolutely nothing to address the serious problems in our nursing home industry.

“This is an industry that earned a D from a national nursing home patients’ advocacy organization. … Nothing is being done about this bad regulatory track record. Nothing is being done to improve the standard of care. The only focus is eliminating the ability of families to hold nursing homes accountable in our courtrooms when our family members are seriously harmed or killed. It’s wrong.”

Majestro noted that West Virginia has one of the oldest populations and that more than 16 percent of the state’s residents are senior citizens.

“Nearly every West Virginia family has someone or knows someone in a nursing home,” he said. “We have a duty to ensure that these facilities meet standards and the patients in them are safe. If you want to eliminate lawsuits against nursing homes, then improve the quality of care.”

He said the bill also included hidden damage caps for pharmacies.

“The people elected this Legislature to help bring more jobs to West Virginia,” Majestro said. “Bills that give immunity to billion-dollar nursing home and pharmacy industries don’t provide those jobs. Instead, they make our state a more dangerous place to live, work and retire.”

West Virginia Citizens Against Lawsuit Abuse, however, commended lawmakers for passing SB 6.

“We applaud the bi-partisan coalition of legislators who sponsored and supported Senate Bill 6, which will bring fairness and uniformity to our lawsuit system,” WV CALA

Executive Director Roman Stauffer said. “Under the leadership of Senate President Bill Cole and House Speaker Tim Armstead, the Legislature continues to pass lawsuit reforms that will ensure all litigants receive a fair and impartial day in court.

“These reforms will provide a boost to our economy and more job opportunities.”