By Zachary Pyers, Esq. and Brandon Harmony, Esq.

The Supreme Court of Appeals of West Virginia’s decision in State ex rel. March-Westin Co. v. Gaujot, (2022 W. Va. LEXIS 201), recently ruled that the trier of fact must consider all persons or entities who contributed to the alleged damages when assessing the percentage of fault, even when a person has immunity preventing them from being named as a party.

Before 2015, the trier of fact assessed fault between only the parties in litigation at the time of the verdict. Accordingly, if there were two defendants in a single case, and one of those defendants settled the matter before the time of the verdict and the other did not, the remaining defendant was apportioned one hundred percent of fault at the time of verdict if found liable. In 2015, West Virginia passed West Virginia Code Section 55-7-13d, seeking to prevent this transfer of liability by reducing a Plaintiff’s recovery in proportion to the percentage of fault assigned to the settling defendant. When a defendant believes another person or entity is partially or wholly at fault, the defendant files a notice of nonparty fault.

In Gaujot, the Supreme Court of Appeals of West Virginia examined whether a Plaintiff’s recovery should be reduced in proportion to a nonparty who is immune from the suit. Monongalia County hired a general contractor to renovate its courthouse plaza. An employee of the general contractor was removing a pole during the project and was assisted by Mr. Weston, who worked for the County Commission, and two other County Commission employees. Mr. Weston was injured when one of the County Commission employees moved the cut pole. Mr. Weston sued the general contractor.

The general contractor filed a notice of nonparty fault under Virginia Code Section 55-7-13d, believing that the County Commission and its employees were wholly or partially at fault. Mr. Weston moved to strike the notice because the County Commission and its employees could not be named as parties as they were statutorily immune from civil suits. The circuit court granted Mr. Weston’s motion to strike, placing one hundred percent of fault on the general contractor if he was found liable at trial.

The general contractor requested the Supreme Court of Appeals of West Virginia to prohibit the circuit court from enforcing its order to strike, and the Supreme Court of Appeals did precisely that. The Court determined that the trier of fact must consider the fault of all people and entities who contributed to the alleged damages, regardless of whether immunity or some other principle of law would prevent that person from being named as a party to the suit.

The Gaujot decision is important for two reasons: (1) Defendants will no longer be in the position of having to accept a trial with exposure to liability for both their fault and the fault of an immune nonparty; and (2) Parties will be more likely to settle disputes for amounts within their own percentage of fault.

If you would like a copy of the Gaujot decision or have any question with respect to apportionment of liability among multiple defendants, please contact one of Reminger’s General Liability/Excess & Surplus Risks Practice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.  THIS IS AN ADVERTISEMENT

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