West Virginia

 
 
 
 
 
 
 
 
 
 
 
 
 
 

Statutes of Limitations (WEST VIRGINIA)

Personal Injury - 2 yrs. [W.Va. Code § 55-2-12]

Wrongful Death - 2 yrs. (after death) [W.Va. Code § 55-7-6]

Med Mal - 2 yrs from date of injury or discovery (but no later than 10 yrs. from date of injury) [W.Va. Code § 55-7B-4]

Property Damage - 2 yrs. [W.Va. Code § 55-2-12]

Written Contracts - 10 yrs. [W.Va. Code § 55-2-6]

Oral Contracts - 5 yrs. [W.Va. Code § 55-2-6]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. [W.Va. Code § 46-2-725]

 

In tort actions, unless there is a clear statutory prohibition to its application, under the “discovery rule” the statute begins to run when Plaintiff knows, or by the exercise of reasonable diligence, should know: (1) that Plaintiff has been injured, (2) identity of Defendant who owed Plaintiff a duty to act with due care, and who breached that duty, and (3) that the conduct of that Defendant has a causal relation to the injury. [Trafalgar House Const., Inc. v. ZMM, Inc., 567 S.E.2d 294 (W. Va. 2002)]

 

 

 

Statutes of Repose (WEST VIRGINIA)

Products - None

Construction of Real Property - 10 yrs. [W.Va.Code, § 55-2-6a]

 

 

 

Claims Against Public/Gov. Entities (NOTE: “Sovereign Immunity” Limitations May Apply) (WEST VIRGINIA)

Against States - Claim must be filed within ordinary statute-or-limitation periods applicable to private defendants [W.Va. Code § 14-2-21]

Against Political Subdivision (County, Municipality) - Suit within 2 yrs. [W.Va. Code, § 29-12A-6]

Against State Agency - Notice 30 days before filing suit [W.Va.Code, § 55-17-3]

 

 

 

Comparative Negligence (WEST VIRGINIA)

Modified comparative (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [W.Va.Code, § 55-7-13c]

 

 

 

Made Whole Doctrine (MWD) (WEST VIRGINIA)

Under general principles of equity, in the absence of statutory law or valid contractual obligations to the contrary, an insured must be fully compensated for his injuries/losses (made whole) before the subrogation rights of an insurance carrier arise [Kanawha Valley Radiologists, Inc. v. One Valley Bank, N.A., 557 S.E.2d 277 (W.Va. 2001)]

 

When applying MWD in connection with health insurer’s attempt to enforce subrogation rights against insured after insured settled with and released automobile insurer, it was incumbent on circuit court to consider: ability of parties to prove liability; comparative fault of all parties involved in accident; complexity of legal and medical issues; future medical expenses; nature of injuries; and assets or lack of assets available above and beyond insurance policy [Provident Life and Acc. Ins. Co. v. Bennett, 483 S.E.2d 819 (W.Va. 1997)]

 

 

 

Economic Loss Doctrine (ELD) (Assuming No Injury to Person or Damage to “Other Property”) (WEST VIRGINIA)

ELD precluded construction subcontractor from recovering against construction project supervisor, with which subcontractor was not in privity, for economic loss due to negligent design and project administration of supervisor; the parties sophisticated and well aware of economic risks when the contract was negotiated [National Steel Erection, Inc. v. J.A. Jones Const. Co.,899 F.Supp. 268 (N.D. W.V. 1995)]

 

Plaintiff who suffers mere economic loss as a result of a defective product must turn to the Uniform Commercial Code to seek relief [Basham v. General Shale, 377 S.E.2d 830 (W.Va.1988)]

 

Property damage to defective products which results from sudden calamitous event is recoverable under strict liability cause of action, but damages which result merely because of “bad bargain” are outside scope of strict liability [Capitol Fuels, Inc. v. Clark Equipment Co., 382 S.E.2d 311 (W.Va. 1989)]

 

 

 

Certificate/Affidavit Of Merit Requirements (Claims Against Licensed Professionals) (WEST VIRGINIA)

In Med Mal actions, at least 30 days prior to the filing of an action, Plaintiff must serve a notice of claim on each health care provider.  The notice of claim must include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers to whom notices of claim are being sent, together with a screening certificate of merit. [W.Va. Code § 55-7B-6]

 

 

 

Landlord/Tenant Subrogation (WEST VIRGINIA)

No law available.

 

 

 

Reimbursement of Deductible(s) (WEST VIRGINIA)

Auto - Pro rata.  Property - No law available.

 

 

 

MedPay and PIP (WEST VIRGINIA)

Med Pay - Subrogation allowed.  PIP - No subrogation allowed and/or no such coverage offered.

 

 

 

Liability of Parents (WEST VIRGINIA)

$5,000 for willful and malicious acts [W. Va. Code, § 55-7A-2]

 

 

 

Joint Liability (WEST VIRGINIA)

Several liability (Plaintiff can recover from each Defendant only that Defendant’s share of liability). However, joint liability may be imposed on Defendants who conspired and deliberately pursued a common plan to commit a tort.  In addition, if Plaintiff through good faith efforts is unable to collect from a liable Defendant, Plaintiff may move for reallocation of any uncollectible amount among the other parties found to be liable. [W.Va. Code, § 55-7-13c]

 

 

 

Independent Cause of Action for Evidence Spoliation (WEST VIRGINIA)

West Virginia does not recognize negligent spoliation as a stand-alone tort against a party to the action.  However, West Virginia recognizes negligent spoliation as a stand-alone tort against a third party.  Also,

West Virginia recognizes intentional spoliation as a stand-alone tort against either a party to the civil action or a third party [Hannah v. Heeter, 213 W.Va. 704 (W.Va. 2003)]

 

 

 

Conflicts of Law (WEST VIRGINIA)

Torts - Courts will apply the law of the place of wrong [Perkins v. Doe, 350 S.E.2d 711 (W. Va. 1986)].  Contracts - Courts will apply the law of the state where the contract was formed, unless another state has a more significant relationship to the transaction (or application of the law of the state in which the contract was formed results in a conflict of public policy) [Cannelton Indus. v. Aetna Casualty & Sur. Co. of Am., 460 S.E.2d 1 (W. Va. 1994)]