West Virginia Federal Court Determines Comparative Fault Theory Applies To Deliberate Intent Actions Under State Law

• Published date: 05 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Tim Yianne

Charleston, W.Va. (August 4, 2022) - A federal judge in the U.S. District Court for the Northern District of West Virginia has dramatically changed the landscape for employers to litigate against personal injury and wrongful death claims by employees. In a recent matter, the plaintiff brought a deliberate intent action under West Virginia Code ' 23-4-2 against his employers for injuries that he allegedly suffered while working as a coal miner. He contended that the injuries were caused by unsafe workplace and dangerous mining activities.

The employers filed a motion requesting leave to assert the affirmative defense of comparative fault pursuant to 2015 statutory revisions to West Virginia's comparative negligence law - West Virginia Code ' 55-7-13a et seq. The employee opposed the motion, citing futility because employers were prohibited from asserting comparative fault as an affirmative defense in deliberate intent actions.

The Chief Judge issued a ruling on July 26, 2022, determining...