West Virginia has traditionally followed the joint and several liability theory for recovery of injuries by multiple tortfeasors. The goal of joint and several liability is to permit the injured plaintiff to select and collect the full amount of damages against one or more joint tortfeasors and allows the injured plaintiff to collect his/her damages from whomever is able to pay, notwithstanding the percentage of fault.  Sitzes v. Anchor Motor Freight, Inc., 289 S.E.2d 679, 685 (W.Va. 1982); see also, Strahind v. Clevenger, 603 S.E.2d 197 (W.Va. 2004); Kodym v. Frazier, 412 S.E.2d 219 (W.Va. 1991).

Through passage of Senate Bill 421, codified as West Virginia Code §55-7-23, the West Virginia legislature has modified the joint and several liability theory, creating what can best be described as a multi-tiered approach for applying limits on joint and several liability. The statute provides that in any cause of action involving the tortious conduct of more than one defendant, the trial court is required to instruct the jury to determine the total amount of damages sustained by the plaintiff and the proportionate fault of each of the parties in the litigation. Judgment shall be entered against each defendant found to liable on the basis of the rules of joint and several liability, except that if any defendant is 30% or less at fault, then that defendant’s liability shall be several and not joint, thereby making that defendant liable only for the damages attributable to that defendant.

Notwithstanding these modifications, if a plaintiff is unable to collect from a liable but otherwise uncollectible defendant, plaintiff may move for reallocation of any uncollectible amount among the other parties in the litigation. The court is then required to make a finding whether all or part of that defendant’s proportionate share is uncollectible, and if so, reallocate such uncollectible amount among the other parties in the litigation, including the plaintiff, according to their respective percentages of fault. 

Under no circumstances shall the court reallocate to any defendant an uncollectible amount greater than that defendant’s percentage of fault multiplied by such uncollectible amount. Moreover, a defendant’s share of the obligation to a plaintiff may not be increased by reason of reallocation if (a) the percentage of fault of that defendant is equal to or less than the plaintiff’s percentage of fault, or (b) the percentage of fault of that defendant is less than 10%. If a defendant’s share of the allocation to the plaintiff claimant is not increased due to these reasons, the amount of that defendant’s share of the reallocation shall be considered uncollectible and shall be reallocated among all other parties who do not fall into this exception, including the plaintiff, in the same manner as stated above.

§55-7-23 applies only to actions involving:

These modifications to the joint and several liability rule do not affect, impair or abrogate any right of indemnity or contribution arising out of any contract or agreement or any right of indemnity otherwise provided by law.