Virginia vs. West Virginia: Noteworthy Differences in Defending Claims

Written by Matthew Liller, Esq.

Edited by Bill Pfund, Esq.

Several attorneys at KPM LAW have dual licensure in Virginia and West Virginia. This article seeks to highlight some key differences between the two states which may play significant roles in defending claims across the borders.

I. Statutes of Limitations

Both states employ a two year limitations period for bodily injury. However, West Virginia’s property damage limitations period is also just two years, while Virginia’s is five years. W. Va. Code § 55-1-12(a); V. Code § 8.01-243(B).

As to contracts, Virginia employs a three year limitations period for oral contracts and five year limitations period for written contracts. Va. Code § 8.01-246(2)-(3). West Virginia employs a ten year limitations period for contracts in writing signed by the party to be charged, and a five year limitations period for any other contract (including oral), express or implied. W. Va. Code § 55-2-6.

II. Comparative or Contributory Negligence

Virginia is a pure contributory negligence state, meaning if the plaintiff’s own negligence contributed to his accident he may not recover. See generally, Estate of Moses v. Southwestern Va. Transit Mgmt. Co., 273 Va. 622, 643 S.E.2d 156 (2007).

West Virginia recognizes modified comparative negligence, allowing a plaintiff to recover damages in proportion to the amount of fault they hold, so long as they are less than 50% at fault for the accident. Tug valley Parm. v. All Plaintiffs Below in Mingo Cnty., 235 W. Va. 283, 773 S.E.2d 627 (2015).

III. Joint and Several Liability / Right of Contribution

Virginia is a joint and several liability state, meaning each tortfeasor is responsible for 100% of the judgment amount; however, each can seek contribution against a co-tortfeasor following its payment. Va. Code § 8.01-34. If one tortfeasor settles with a plaintiff before trial and is released from liability, they are not entitled to contribution from any remaining tortfeasor(s) whose liability was not also extinguished in the release. Va. Code § 8.01-35.1.

West Virginia abolished joint and several liability and adopted comparative fault in 2015. W. Va. Code § 55-7-13a-d. Each tortfeasor is liable only for the amount of damages allocated to that tortfeasor in direct proportion to its percentage of fault, and a separate judgment is rendered against each tortfeasor for his or her share of that amount. W. Va. Code § 55-7-13c(a). Nonetheless, if a plaintiff through good faith efforts is unable to collect from a liable tortfeasor, the plaintiff may, not later than one year after final judgment, move for reallocation of any uncollectible amount among the other parties found to be liable. W. Va. Code § 55-7-13c(d). While this system generally decreases the likelihood for contribution actions, recovery can be had by one joint tortfeasor against another, regardless of their respective degree of fault, if one has paid more than its share to the plaintiff. Syl. pt. 6, Modular Bldg. Consultants of W. Va., Inc. v. Poerio, Inc., 235 W. Va. 474 (2015).

IV. Punitive Damages

Under Virginia law, punitive damages are capped at $350,000. Va. Code § 8.01-38.1.

Under West Virginia law, the amount of punitive damages may not exceed the greater of four times the amount of compensatory damages or $500,000, whichever is greater. W. Va. Code § 55-7-29(c).

V. Offers of Judgment

Virginia does not employ offers of judgment in state court proceedings.

West Virginia does employ offers of judgment. Rule 68, W. Va. Rules of Civil Procedure. Only a defendant may make an offer of judgment, and may do so any time more than ten days before trial. If the offer is not accepted and the jury’s verdict does not exceed the amount of the offer, the plaintiff must pay the costs incurred after the making of the offer.

The above statutes, rules, and holdings highlight some important differences in defending claims between Virginia and West Virginia. The attorneys at KPM LAW have experience in both states and are prepared to defend your case no matter which side of the border it may be on.

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