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[i]n any action for damages, the liability of each defendant for compensatory damages shall be several only and may not be joint. Each defendant shall be liable only for the amount of compensatory damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against each defendant for his or her share of that amount. However, joint liability may be imposed on two or more defendants who consciously conspire and deliberately pursue a common plan or design to commit a tortious act or omission. Any person held jointly liable under this section shall have a right of contribution from other defendants that acted in concert.
See, W. Va. Code § 55-7-13c. The statue also contains provisions for reallocation of a damage award if a portion of it is found to be uncollectible.
Wrongful Death
The statutory provisions governing wrongful death claims in West Virginia are found at W. Va. Code § 55-7-5 through W. Va. Code § 55-7-8a. Wrongful death actions in West Virginia must be brought by the personal representative of the decedent. See, W. Va. Code §55-7-6. The personal representative can be appointed in West Virginia, or in any other state, territory of district of the United States, or in any foreign country.
An award resulting from a wrongful death claim must be distributed to the survivors of the decedent in any proportions which the jury, or in a case tried without a jury, the court, directs. W. Va. Code §55-7- 6(b). The damages will be apportioned between the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents, and “any persons who were financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution after making provision for...expenditures.” Id. Under West Virginia case law, any of the above beneficiaries are entitled to share in the award of damages even in the event that they may pass away prior to the distribution of the award. Graham v. Ashbury, 234 W.Va. 286, 765 S.E.2d 175 (2014). In the absence of any such survivors, the damages will be distributed in accordance with the decedent’s will. If no such will exists, the damages shall be distributed in accordance with the laws of intestate succession of West Virginia.
Damages
W. Va. Code §55-7-6(c) states that the verdict of the jury shall include, but may not be limited to, the following damages: “Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; compensation for reasonably expected loss of income of the decedent, and services, protection, care and assistance provided by the decedent; expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and reasonable funeral expenses.” Any damages for reasonable funeral, hospital, medical and said other expenses incurred as a result of the wrongful act shall be set forth separately by the jury.
Damages may also be awarded for the pain and suffering experienced by the decedent between the time of injury and time of death. The West Virginia Supreme Court of Appeals held:
a jury’s verdict may include damages for the decedent’s pain and suffering endured between the time of injury and the time of death, where the injury resulted in death but the decedent did not institute an action for personal injury prior to his or her death. To award damages for pain and suffering, there must be evidence of conscious pain and suffering of the decedent prior to death. Where death is instantaneous, or where there is no evidence that the decedent consciously perceived pain and suffering, no damages for pain and suffering are allowed.