New law complicates recovery when multiple parties cause an injury

Certain types of injuries often can be traced back to the fault of more than one individual. For anyone who is injured in such an accident in West Virginia, seeking compensation for those injuries just got a little more complicated. Lawmakers in West Virginia recently passed a set of reforms that change the way injured accident victims can recover for their medical costs, lost wages and other damages when there are multiple parties at fault for causing the injury.

Shifting away from joint and several liability

Under West Virginia's old law, when two or more parties were found to be at fault for causing an injury, if one of them was found to be 30 percent or more at fault, then that party could be held liable to the injured victim for the full extent of the injuries, not just for his or her individual share of the fault.

For example, if Alex suffered $100,000 in damages from a car accident for which Bonnie and Chris were each found to be 50 percent at fault, Bonnie could potentially be required to pay Alex the entire $100,000 amount instead of just half. Bonnie could then sue Chris to recoup the other half of the payment. The idea behind this structure is to shift the risk of financial loss away from injured accident victims and onto the parties responsible for causing the injuries.

A new system of comparative fault

Under West Virginia's new law, which took effect in May 2015, each individual defendant can usually be held liable only for the percentage of compensation corresponding to his or her individual level of fault. Thus, a party found to be 50 percent at fault for causing an injury could not be required to pay more than 50 percent of the damages, even if the other at-fault parties cannot be found or made to pay.

In theory, this change protects defendants from being disproportionately liable when they are only partially responsible for causing an accident. However, it makes it more difficult and sometimes impossible for injured parties to recover full compensation for their injuries. Some exceptions exist in the new laws, such as in cases where two or more parties work together to cause an injury, a defendant's conduct constitutes criminal conduct or a defendant while driving under the influence proximately caused the damages suffered by a plaintiff. In those cases, an individual defendant may still be liable for damages beyond his or her individual proportion of fault.

Also, the new system allows defendants to deflect their own responsibility for causing an accident to non-parties or persons not involved in the lawsuit. This is what is known as the "empty-chair defense." It arguably allows the plaintiff's recovery against the defendant to be reduced by the non-party's percentage of fault, even though the plaintiff may not be able to recover from the non-party.

Victim's fault may bar recovery

Another slight change under the new law bars injury victims from receiving compensation when they are more than 50 percent at fault for causing their own injuries. This means that someone who is hurt in an accident and is found to be more than half at fault for the accident may not be able to recover compensation, even if another party played a substantial role in causing the injury. Prior to the new law, an injured party was barred from recovering if he or she was 50 percent or more at fault for their own injuries.

When an accident victim gets help from a personal injury lawyer, the lawyer's job is to help the client pursue maximum compensation for his or her injuries and related losses. This includes presenting evidence of fault and advocating on behalf of clients to make sure that they are not unfairly blamed for accidents caused by others. If you or a loved one has been hurt in an accident, the skilled personal injury lawyers at Farmer Cline & Campbell, PLLC, can help you protect your rights and pursue the compensation you need to make the best possible recovery.