West Virginia has been rated among the five worst states with respect to the tort liability system and how it is perceived by Corporate America according to a study recently conducted by the United States Chamber of Commerce. The State Liability System’s Ranking Study focused on tort and contract litigation, treatment of class action suits, punitive damages, timeliness of summary judgment/dismissal, discovery, scientific and technical evidence, judges’ impartiality, judges’ competence and juries’ predictability and fairness. Seventy-eight percent of those surveyed report that the litigation environment in a state could affect important business decisions at their company such as where to locate or where to do business. Overall, West Virginia received a grade of D-.

The top five states as evaluated by Corporate America at doing the best job of creating fair and reasonable litigation environments are Delaware, Virginia, Washington, Kansas and Iowa. The worst are Mississippi, West Virginia, Alabama, Louisiana and Texas. West Virginia ranked 49 overall in all categories of the survey. West Virginia ranked as follows with respect to the specific areas:

The issues of tort reform and punitive damages were identified as the most important issues that state policymakers who care about economic development should focus on to improve the litigation environment in any particular state. Also identified as important issues are judicial competence, the selection of judges, the specific issue of judicial appointment versus election, speeding up the trial process, the limitation of class action suits, capping damages and the elimination of unnecessary lawsuits.

Participants in the study were a national sample of in-house general counsel or other senior litigators at public corporations with annual revenues of at least $100 million.

In a consolidated appeal, the West Virginia Supreme Court of Appeals issued several new points of law from an evidentiary standard in Doe v Wal-Mart Stores, Inc., (Nos. 26012 and 29335, W.Va., filed Dec. 7, 2001). The issue arose after a Wal-Mart customer was abducted from a parking lot in Beckley and sexually assaulted. Wal-Mart did not own the parking lot but it was provided for the store's customers. The plaintiff sued Wal-Mart alleging breach of a duty to provide adequate security and a verdict was returned in favor of Wal-Mart. On appeal the Court granted a new trial, but also opined about several evidentiary issues.

First, the plaintiff argued that she was improperly forced to use a preemptory strike to remove a potential juror who owned stock in Wal-Mart and whose husband was a produce manager at a Wal-Mart in Virginia. The Supreme Court determined that owning stock in the company constituted having an interest in the cause which rendered the potential juror per se disqualified. This alone, the Court held, entitled the plaintiff to a new trial. Nonetheless, the Court considered other assignments of error indicating that its rulings could impact the new trial.

The plaintiff raised several objections to jury instructions and the closing argument of defense counsel. The owner of the parking lot settled with the plaintiff prior to trial. Defense counsel argued that the landowner rather than Wal-Mart was the appropriate defendant. The Doe Court found that counsel's argument called for "inappropriate speculation by the jury." The Court, however, did not determine whether this issue standing alone was sufficient to warrant a new trial.

The Court also considered discovery limitations imposed by the trial Court as well as the exclusion of expert testimony proffered by the plaintiff. The Doe Court held that the plaintiff's expert should be allowed to testify about other crimes which occurred in other parking lots in the Beckley area as a basis for his opinion that Wal-Mart was on notice for the need to provide security in the parking lot. The Circuit Court of Raleigh County excluded evidence of other crimes which were not similar involving other stores and also prohibited the plaintiff's expert from testifying about his prior experience with Wal-Mart in other parking lot cases across the country. The plaintiff attempted to use such evidence to show "that Wal-Mart's experience as a company was relevant to its duty to provide security in this case." Although the Doe Court found that the parties had not properly framed the issue on appeal, the Court nonetheless stated that experts may testify to inadmissible facts that form the basis of their opinions under Rule 703 of the West Virginia Rules of Evidence and held that an expert witness may testify about facts he or she reasonably relied upon to form an opinion even though such facts would otherwise be inadmissible as hearsay. If a trial Court admits such testimony, the jury should be instructed that the otherwise inadmissible factual evidence is not being admitted to establish the truth thereof, but solely for the limited purpose of informing the jury of the basis for the expert's opinion. This ruling essentially permits 404(b) evidence to be admitted against any defendant.

Finally the Court held that Rule 407 of the West Virginia Rules of Evidence concerning subsequent remedial measures may be introduced for purposes of impeachment: 1) When instances other than the defendant's prior negligence may be drawn therefrom; or 2) When a defendant introduces evidence to prove that the condition alleged to have caused the plaintiff's injury was as safe as the circumstances would permit; and 3) The probative value of such evidence outweighs its potential prejudicial effect. Therefore, the Court concluded that an article authored after the abduction by Wal-Mart's Vice-President of Loss Prevention should be admitted for impeachment purposes. The Court also remanded an issue of post-trial sanctions.

The West Virginia Supreme Court has now held that per curiam opinions shall have precedential value. The issue was raised in Walker vs. Dell, (No. 29290, W.Va., filed Oct. 25, 2001). The case began as an appeal of summary judgment in favor of Allstate Indemnity Company on an uninsured motorist claim. It revolved around an issue as to whether a per curiam opinion carried precedential weight. The Court devoted most of its opinion to explaining the purpose of per curiam opinions and essentially overruled footnote 4 of Lieving v Hadley, 188 W.Va. 197, 423 S.E. 2d 600 (1992).

The Court found that the value of per curiam opinions is well-established and that such opinions provide examples of the Court's reasoning and "offer guidance on issues collateral to signed opinions." Writing for the majority, Justice Albright held that the Court will continue to use signed opinions when new points of law are announced through syllabus points. Thereafter, the Supreme Court affirmed summary judgment in favor of Allstate.

The West Virginia Supreme Court has held that when an individual acts in self-defense or in defense of another, an insurance company may not rely upon an intentional act exclusions to deny coverage or a defense.

The issue arose in Farmers & Mechanics Mut. Ins. Co. of W.Va. v Cook, (Nos. 29841 and 29842, W.Va., filed Dec. 10, 2001), after the Circuit Court of Hardy County granted summary judgment to the carrier in declaratory judgment and wrongful death actions against the insured. The case began when Mrs. Cook, in the defense of her husband, shot and killed a third-party aggressor during a physical altercation over a property line dispute. The wife testified she held a shotgun in one hand and tried to pull the aggressor off her husband. She was convicted of second-degree murder but her conviction was overturned by the Supreme Court. During her deposition, the wife testified that she "didn’t really aim" the shotgun at the man attacking her husband.

F&M filed a declaratory judgment action invoking the intentional acts exclusion which excludes coverage for "bodily injury or property damage . . . which is expected or intended by the insured." The Circuit Court found that a claim of self-defense was insufficient to overcome the exclusion and concluded that the wife’s actions "entail[ed] a conscious and intentional element."

In its analysis, the Supreme Court held that an intentional act as well as an intended or expected consequence must be present before the exclusion shall operate to void coverage. Moreover, the Court considered the "subjective intent" of the policyholder and determined that Courts should not examine the exclusion with an "objective" standard, i.e., whether the resulting injury or damage was reasonably foreseeable to a reasonable person, finding that such inquiry is "largely irrelevant." Rather the Cook Court held "the question to ask is, did the policyholder expect or intend the injury or property damage?" Therefore, the Court concluded that under an intentional acts exclusion a policyholder may be denied coverage only if the policyholder: 1) committed an intentional act; and 2) expected or intended the specific resulting injury or damages. Thereafter, the Court considered the expected or intended language of the exclusion in the context of a self-defense or defense of another scenario and held that when a policyholder acts with wrongful intent, coverage may be denied; but, when the "wrongful" element is lacking, the exclusion cannot be used. The Cook Court concluded that the insured did not clearly act with a wrongful or criminal intent but that she acted solely with an intent to prevent injury to herself and her husband.

In order to invoke the exclusion, carriers must prove directly or indirectly that the conduct was in some way prohibited. Therefore, the Court concluded that a loss which results from acts committed by a policyholder in self-defense or in defense of another is not, as a matter of law, expected or intended. The Court specifically found that when a policyholder is "faced with a harm-threatening situation, the decision to defend oneself is not a choice. It is an instinctive necessity." The Cook Court found that a fact finder must determine whether the insureds acted within their legal rights. The Court left unanswered the question as to whether F&M is required to indemnify the insureds.