WHEELING, W.Va. — The overhaul of West Virginia’s legal system is moving from an idea to reality, as many of the tort reform measures passed by the new GOP-led Legislature officially take effect this week.
From limiting an employee’s ability to sue for workplace injuries to protecting property owners from lawsuits when a trespasser is injured on his or her property, proponents hope the changes will allow West Virginia to shed the “judicial hellhole” label that has followed it for many years – which made it, they say, a less attractive place to do business.
“I can’t overestimate the change I believe we’re going to see,” said Thomas Kleeh, a Charleston attorney working for the Steptoe & Johnson law firm, during a recent West Virginia Business and Industry Council-sponsored “Policy event in Wheeling.
One of the more controversial items in the tort reform package goes into effect Friday. Known as the “deliberate intent” bill, the measure prevents employees or their families from suing their employers for on-the-job injuries for which they’re already collecting workers’ compensation benefits – unless the plaintiff can prove his or her employer deliberately acted to cause the injury.
Many Democrats who opposed the bill argued the law would keep companies from being held accountable for safety violations, but supporters countered by saying the workers’ compensation system is sufficient to protect employees without the need for additional litigation.
“It wasn’t radical or reckless or wrong. It just got us back to where we needed to be so we can compete,” Kleeh said, referring to comments made by Delegate Tim Manchin, D-Marion, after the House’s 59-38 vote to pass the deliberate intent bill.
Another measure which amends the state’s Wage Payment and Collection Act goes into effect Thursday, and requires employers to issue departed employees their final paychecks by the payday on which they would have been paid regularly. Previously, employers had to follow different guidelines for issuing an employee’s final paycheck based on whether the worker was fired or quit with or without notice.
Two tort reform measures went into effect Monday, including one that caps punitive damages for civil lawsuits at $500,000 or four times the amount of compensatory damages awarded, whichever is greater. Kleeh said this will prevent outrageous, multi-million dollar verdicts for which the state had become notorious, while still maintaining a higher cap than many of its neighbors. Pennsylvania and Virginia, for example, limit punitive damages to two and three times the amount of compensatory damages, respectively.
Some of the Legislature’s tort reform initiatives have already been in effect for months. The “premises liability” bill, which protects property owners from being sued for injuries sustained by a trespasser, passed both houses unanimously and has been in effect since April 29.
Another new law took effect immediately upon passage Feb. 18, preventing property owners from lawsuits related to “open and obvious” hazards that a reasonable person should have been able to avoid simply by paying attention. An example, Kleeh said, would be someone falling into a giant sinkhole in an open field.
“I have an 8-year-old and a 3-year-old, and we practice ‘open and obvious’ safety at home all the time,” Kleeh said. “Now that same rule applies to the courtroom.”