CHARLESTON – The first Republican-controlled session of the West Virginia Legislature in decades is in the books, and tort reforms were a key focal point.
After having a few days to catch their breath, statewide groups that follow legal reform issues are looking back at the historic session.
“I think we had a very good legislative session to address legal reform issues that have plagued West Virginia for many, many years,” said Roman Stauffer, executive director of West Virginia Citizens Against Lawsuit Abuse. “The legislative leaders made legal reform a priority. They recognized it is one component of an economic development package.”
The president of the West Virginia Association for Justice, however, said his group for trial lawyers is worried what the changes will mean.
“I’m concerned that the breadth of the changes are going to have unforeseen consequences because we’re simultaneously changing significant overlapping areas of our tort law,” WVAJ President Anthony Majestro said.
The most significant bill passed, according to both groups, is the comparative fault bill recently signed into law by Gov. Earl Ray Tomblin.
Stauffer said WV CALA is pleased the comparative fault bill was passed. The measure ensures defendants only are responsible for their share of damages. Until now, defendants could be held responsible for more damages if some other defendants can’t pay their share.
“That legislation ensures parties involved in lawsuit are required to pay their share,” Stauffer said. “It’s a simple notion, and our polling shows that a strong majority of West Virginians supported this. We think that’s a really big one.”
Majestro and the WVAJ, however, said there are issues with the new comparative fault law, which also is called joint and several liability in legal circles.
This applies across many different areas of tort law,” Majestro said. “The old rules were clearly established and understood by parties, lawyers and judges. It’s going to take a couple of years before we have comfort with the new proposal.
“Of particular concern with this proposal is that we’re going to have uncompensated losses from the plaintiffs when a defendant is insolvent. Those losses will have to be borne by someone – either by the rest of us taxpayers or through higher insurance rates for unpaid medical bills.”
Majestro said the new law also creates “significant incentive to add additional defendants whose fault bares very little fault to the harms caused.”
“And along with that, the structure of the act creates a disincentive toward settling those claims early,” he said. “We believe the end result will be increased litigation and increased defense costs.”
WVAJ also expressed concern about SB6, the Medical Professional Liability Act bill.
“Under that bill, every entity even tangentially related to health care now receives the damage caps and protections the legislature previously gave to health care providers who were suffering from the liability insurance crisis,” Majestro said. “Pharmaceutical companies aren’t suffering. There has been no showing of a crisis in these other entities.
“Under this bill, I’m not sure that nail technicians and personal trainers aren’t included now.”
Stauffer said WV CALA also was pleased with the passage of other bills, such as one reinstating the open and obvious doctrine. SB13 also already has been signed by Tomblin. Another was the trespass liability bill. It also has been signed into law.
“The Legislature has taken the first steps to bring West Virginia into the mainstream,” Stauffer said. “These bills are the legal reforms that will do the most for our state. These are things that have been mentioned year after year in the Judicial Hellholes reports. They are moving us in a good direction.”
Majestro said some of the legislation that passed “clarifies ambiguities in West Virginia law” regarding the procedures to be followed.
“It’s always good to have clarity in the law because it reduces uncertainty and decreases litigation, which is good for everybody,” he said.
“From the onset (of the session), I encouraged the legislative leaders to slow down and take a more deliberative approach. But forces that appeared to come from outside the Legislature prompted them to attempt the changes that went well beyond even the perceived problems with West Virginia’s tort system.
“As the session went on, it appeared to me that the leadership began to listen to our concerns, and the bills that were ultimately adopted, while we believe were unnecessary, tempered the draconian reforms originally introduced.”
Majestro said he thinks WVAJ played an important role this session.
“We were pleased that we were able to educate the new legislative leadership on the important goals of the civil justice system and its proper place in our state,” he said. “The bills introduced at the beginning of the session reflected a wish list of national business groups, and were completely out of step with both West Virginia’s legal climate and our existing legal system.
“We look forward to continuing to work with the Legislature to address real needs of the state rather than those of the U.S. Chamber and its allies who seek immunity, not responsible tort laws. (Editor's Note: The West Virginia Record is owned by the U.S. Chamber of Commerce's Institute for Legal Reform.)
“And, we appreciate being able to work with industry and legislative leadership to make what we believe were more responsible changes. For example, on SB411 – the Asbestos Trust bill – we were happy to work with Senator (Charles) Trump and both sides of the bar to come up with a compromise to codify how cases are handled under existing rules.
“And the changes to the deliberate intent statute – HB2011 – also were a result of a compromise of negotiations with the coal industry, BIDCO and plaintiffs’ attorneys who litigate those cases. We believe it will still preserve the rights of those injured or killed to receive compensation.”
Stauffer said WV CALA now will set its sights on next year’s session and other changes it wants to see happen.
“The big one now we have spoken about for years is the need for an intermediate court of appeals,” he said. “We’re one of a handful of states that doesn’t have one. That is going to require some funding, and our state is in a tight budget situation right now.
“I think next session it will be taken up. I think House Speaker (Tim) Armstead and Senate President (Bill) Cole realize the need for an intermediate court of appeals. It’s just finding the money to fund that.”
West Virginia Chamber of Commerce President Steve Roberts also praised the tort reform work of the lawmakers.
“Clearly, the Legislature understood the critical need to address legal reforms that will send a strong message that West Virginia is a state that espouses a legal system that is fair and balanced to all parties,” Roberts said. “SB 3 ensures private property owners are protected from being sued if a trespasser is injured. SB 13 will protect property owners from liability if a person is injured by a hazard that is clearly ‘open and obvious,’ and HB 2002 will ensure that defendants in a trial who are ordered to pay damages will only have to pay their share of the fault.”
West Virginia Attorney General Patrick Morrisey also praised the work of the Legislature.
“With the 2015 legislative session in the books, I want to congratulate the Legislature for taking some good first steps on legal reform, prevailing wage, and a measure that would help our Office's litigation efforts against the EPA's proposed rule governing coal-fired power plants,” Morrisey said. “I also want to congratulate the Legislature for enacting a new law that ensures West Virginia is no longer one of only nine states that allow abortions up to the time of birth.
“With the successes the Legislature has had, it is important to remember that Rome wasn't built in a day. It will take far more than one session to ensure West Virginia reaches her potential.
“But, let's be clear, the Legislature is making progress. Next year, I hope the Legislature will take more steps to trim the state’s budget and reform our tax structure. Our goal should be to lower citizens’ tax burdens and eliminate wasteful government spending.”
The state Republican Party said the new legislative regime “did more for the taxpayers in 60 days than had been done in the last 60 years.”
“Strong legislation to ensure fair courts, repeal Joe Manchin's Cap and Trade Law, protect the unborn and streamline public spending are just a few highlights of the most productive session of the modern era,” GOP Chairman Conrad Lucas said. "We filled the ballot with committed conservatives and ran on the message that we can return this state to prosperity. The people gave us their trust and our legislators delivered. Our new majorities came here with lots to do, and a mandate from the citizens to fix so many things needed to pull this state out of last place in too many rankings.
"This session has been focused on jobs, protecting the ones we have in our coal and energy industries and growing the economy so that new faces can move here, grow here and help us prosper going forward. Without a vibrant economy, we can't have the roads, schools and growing communities that we deserve in this state. The last eight weeks are a jumping off point; there is more to do. We can throw off the rust and atrophy of the last 80 years, and make this truly a state our children and grandchildren can be proud to raise their own."
State Democratic Party Chairwoman Belinda Biafore was critical of the new GOP leadership.
“Republicans campaigned on a promise to create jobs, and we did not see one jobs bill or plan to create jobs this session,” she said. “The only jobs bills we saw were the ones that were gutting our wages and the quality of the jobs that West Virginia already has.
“What were they doing with their time? They were busy pushing legislation on behalf of out-of-state interest groups and big money corporations, and participating in self-serving politics.”
She said the Republican leadership’s “radical agenda” hurt West Virginians.
“They gutted wages, rolled back workplace safety and put the education and health of our children and families at risk,” Biafore said. “We will not let them continue to hinder the quality of life for the hardworking West Virginians that have built this state and the children that are the future of this state.”
