The OMEGA/WVTA team worked very hard this session to promote bills to help not only our industry but the entire business community of the state. The new leadership at the Legislature promoted a very transparent and professional operation that encouraged common sense legislation to improve our state. It was a refreshing change of pace from historically being on the defensive side of the lawmaking process for the majority of a session to actually playing offense with many seats at the table on a number of important pieces of legislation. There was a broad coalition behind a comprehensive number of bills aimed at improving the legal and business environments of West Virginia.
Legal Reform
A significant number of tort reform and business friendly legislation was passed this session in a bipartisan manner. This legislation was long overdue and greatly needed to improve the business and legal climate in our state. Major legislation passed which will help foster in the greatly needed reforms includes:
“Open & Obvious" doctrine for property liability
Property owners liability for trespasser's harm
"Comparative Fault" liability for degree of fault
Punitive damages in civil actions
Revised Uniform Arbitration Act
Clarifying damages in employment claims(front & back pay)
Clarifying "Deliberate Intent" law
Relating to medical professional liability
Requiring Justices & Judges to be elected non-partisan
Creating "one-stop" shop for small businesses
Payment of separated employee's outstanding wages
Payment of wages by employers time frame
Changing calculation of "Prevailing Wage"
(A more detailed summary with links to each bill is included later in the this legislative summary)
WVTA Key Successes
Amending Aboveground Storage Tank Act of 2014 (SB 423)
We worked extremely hard with a coalition of industry stakeholders, the leadership of the Department of Environmental Protection, as well as members and staff in both chambers of the Legislature to pass the much needed reform of the 2014 AST Act. Key elements to this legislation are:
Focuses on aboveground storage tanks in critical zones that would most likely impact drinking water in the event of an incident or containment failure.
Requires registration of ALL tanks and allows the DEP to maintain a comprehensive inventory of tank location and contents.
Expands protection by having not only a critical zone of concern but also a zone of peripheral concern to further protect water sources.
Provides tank owners two options: comply with AST Act or amend standards by the Secretary of the DEP into existing permits or plans, thus if the tank is regulated under SPCC, GPP, Stormwater permit or under NFPA 30 and NFPA 30A, etc., those will be your allowed regulations with the modification to prove tank integrity and secondary containment.
Elements specific to our industry:
A tank has to be in place 365 days before it becomes a regulated tank – this should get rid of ALL of our field/temporary tanks. This is a major win for us and the DEP estimates that this will take approximately 10,000 tanks out of the regulations completely including the registration fee of $40.
We were able to eliminate petroleum from the definition of a Level 1 tank. So none of our tanks, unless over 50,000 gallons, will be considered. Again – another major win for our industry!
Tanks considered Level 2, have less stringent regulations than Level 1.
If a tank owner can supply the DEP documentation to show they are governed under another set of regulations, the DEP will deem that that regulation covers your tanks and you will not have further regulation under the AST law. This will include no additional fees as well.
Level 2 tank owners will be able to do their own inspections. Owners can certify the inspections.
The definition for the “first point of isolation” was changed to: “value, pump, dispenser or other device or equipment on or nearest to the tank where the flow of fluids into or out of the tank is shut off manually or where it automatically shuts off in the event of a pipe or tank failure.” This should help our bulk plant members.
Keep in mind that rules will need to be developed. OMEGA/WVTA team will work closely with other industry stakeholders and the DEP on these rules. We will advise members of these developed rules as we go along.
Other Industry Specific Legislation Passed
SB 192 - Authorizing Department of Transportation promulgate legislative rules (CSR 91-04).This bill makes changes to rules pertaining to examination and issuance of Driver’s Licenses, including CDLs. The changes to CDL allow an individual to has had their CDL revoked or suspended due to expired medical exam certificate has two years to acquire a valid medical exam certificate before both written and road skills retesting is required. New rules also give individuals with an expired FMCSA certificate 10 additional days (from 20 to 30 days) to acquire a new certificate.
SB 373 - Allowing wireless communication image serve as proof of motor vehicle insurance.This bill allows an image displayed on a wireless communication device (smart phone) to serve as proof of insurance on a motor vehicle.
SB 403 - Increasing period during which recorded and refiled motor vehicle liens are valid.This bill increases from ten years to fifteen years the time period during which a lien noted on the face of the certificate of title to a motor vehicle is valid and increases from two years to five years the time period during which a refiled lien on a motor vehicle is valid.
SB 581 - Relating to Tourism Promotion and Courtesy Patrol Fund.This bill changed the agency that manages the Courtesy Patrol from Tourism back to the Division of Highways, which has a potential cost of $4.5 million to the DOH.
HB 2008 - Auditing the Division of Highways.This bill requires the Division of Highways perform a performance and efficiency audit in their respective regions later this year.
HB 2148 - Conforming the motor vehicle law of this state to the requirements of section 1405(a) of the Federal Transportation Equity Act for the Twenty-first century. This bill prohibits the consumption of an alcoholic beverage as well as the possession of an open alcoholic beverage container in a motor vehicle.
HB 2571 - Creating a fund for pothole repair contributed to by private businesses or entities.This bill authorizes the West Virginia Commissioner of Highways to create a fund for pothole repair contributed to by private businesses or entities; and to provide for recognition of the contribution of the private businesses or entities at the site of repair.
HB 2625 - Continuing the current hazardous waste management fee.This bill continues the current hazardous waste management fee until 2020.
SCR 50 - Providing for issuance of refunding bonds pursuant to Safe Roads Amendment of 1996.This Senate Concurrent Resolution provides for the issuance of refunding bonds not to exceed $185.39 million dollars.
General Business Successes
SB 12 - Relating to payment of separated employee’s outstanding wages. This bill relates to when final payment of wages to an employee is due. It defines that the payment is to be made the next scheduled pay period while providing exception for bonuses and fringe benefits. The bill also reduces amount of liquidated damages available for violation and providing an instance when liquidated damages are not available.
SB 318 - Relating to payment of wages by employers.This bill amends the current Wage Payment and Collection Act relating to the number of required pay periods in a month, requiring employers to pay employees at least twice every month instead of once every two weeks.
SB 323 - Relating to municipal home rule.This bill extends municipal home rule to all Class I, Class II, and Class III municipalities, and allows participation of Class IV municipalities. Last year the Legislature expanded the Home Rule Pilot Program from four to twenty cities. Participating cities have used the program to address abandoned homes, implement sales taxes and other fees. If a city has plans to implement new taxes they must lower their B&O taxes accordingly to their proposed increase. Home Rule cities would have to submit a plan for approval to the Home Rule Board, which would oversee the program, and once approved the cities would not have to gain permission for each change they do under the program. We made sure that this legislation would not allow municipalities to increase any fuel taxes.The pilot program began in 2007 and terminates in 2019.
SB 361 - Eliminating prevailing hourly wage requirement for construction of public improvements.The bill, in its original form, would have completely eliminated the prevailing wage law. The amendments to the original bill transfer the responsibility of calculating rates from the Department of Labor to WorkForce West Virginia and would exempt prevailing wages from public improvement projects that would cost under $500,000.
HB 2217 - Relating to qualifications of the Commission of Labor.This bill removed language stating that the commissioner of labor is to be identified with the labor interests of the State and replaced with requiring that the commissioner be identified with having knowledge and experience in employee issues and interests including employee-employer relations in this State.
HB 2233 - Requiring that legislative rules be reviewed five years after initial approval by the Legislative Rule-Making Review Committee and the Legislative Auditor’s Office.This bill requires that legislative rules be reviewed five years after initial approval by the Legislative Rule-Making Review Committee and the Legislative Auditor’s Office and to provide rule-making authority by that committee and auditor.
HB 2878 - Creating a one-step electronic business portal in West Virginia. This bill requires the Secretary of State to create a single electronic business portal that individuals and businesses can use to complete and file forms, pay taxes and fees and learn about the requirements for doing business in West Virginia. It also requires the Secretary of State to develop a call center to answer questions.
Legal Reform – Session Highlight
SB 6 - Relating to medical professional liability. This bill intends to control the increase in cost of liability insurance and maintain access to affordable health care services for West Virginians. It provides a mechanism to increase the limitation on civil damages in medical malpractice cases to account for inflation by linking increases to the Consumer Price Index (CPI). It also requires appellate courts to review de novo certain decisions made by circuit court judges; adds provisions limiting the admissibility and use of certain information; and requires adjustment of verdicts for past medical expenses.
SB 13 - Reinstating open and obvious doctrine for permises liability.This bill permanently reinstates the open and obvious doctrine for premises liability law, which has been the law of West Virginia for more than one hundred years, and overrules the decision of the Supreme Court of Appeals of West Virginia in the case of Hersh v. E-T Enterprises, Limited Partnership, 232 W.Va. 305, (November 12, 2013). The bill provides that a possessor of real property owes no duty of care to protect against dangers that are obvious, reasonably apparent, or as well known. This will help negate “jackpot justice” lawsuits from hurting among others, our small business owners, especially retailers. Senator Nohe of Wood County and Delegate Waxman were lead sponsors of this legislation.
HB 2002 - Predicating actions for damages upon principles of comparative fault.Better known as the “joint and several” bill, it provides the fairest way for juries to allocate liability among the parties based on the percentage of their fault. Liability for tortious action should be based on fault above all else and this bill provides for that. West Virginia was an outlier among bordering states as the current judicial system allows for a joint distribution of liability among all defendants in a suit regardless of their share of fault. This way unfairly penalized individuals and small businesses who may have had very little responsibility for damages or injury by forcing them to pay for liability that does not belong to them. This legislation provides for “several” instead of “joint” liability so a defendant is only responsible for the compensatory damage allocated to them in direct proportion of their percentage of fault. Delegate Wagner and Senators Gaunch and Carmichael were lead sponsors of this legislation.
HB 2011 - Relating to disbursements from the Worker’s Compensation Fund where an injury is self-inflicted or intentionally caused by the employer. This bill isbetter known as the “deliberate intent” bill. As currently defined, deliberate intent damages the state’s business climate and the passage of this bill will be significant step in negating that negative business climate and bring West Virginia’s workplace liability law in line with most other states. The bill imposes a narrower and more stringent requirement upon deliberate intent litigation, and overrules case law from the West Virginia Supreme Court of Appeals, McComas v. ACF Industries, that currently stands for the proposition that an employer may not use lack of actual knowledge as a defense to a deliberate intent action when the employer willfully ignores an unsafe working condition or safety regulation requirement to prevent actual knowledge from occurring. Passage of this bill will help relieve some litigation burdens on our business and industrial communities. Delegate Hanshaw and Senator Gaunch were lead sponsors of this legislation.
SB 37 - Creating Revised Uniform Arbitration Act.This bill revises West Virginia’s Arbitration Act which currently provides no significant guidance to parties engaged in the process of arbitrating disputes. Creating uniform arbitration is an efficient and cost effective way of resolving disputes. The bill provides uniform rules, terms and processes for arbitration that are in line with eighteen other states that adopted uniform arbitration rules. Senator Palumbo was the lead sponsor of this legislation.
SB 315 - Relating to civil actions filed under Consumer Protection Act.This bill amends legislation relating to civil actions filed under the Consumer Protection Act; provides a statement of legislative intent that courts be guided by federal court and agency interpretations of similar federal statutes; clarifies who may bring private cause of action; establishes requirement of out-of-pocket loss proximately caused by alleged violation in actions for damages; and provides right to demand a jury trial.
SB 344 - Relating to duty to mitigate damages in employment claims. This bill was also known as the “front and back pay” bill. It provides framework for adequate and reasonable compensation to those persons who have been subjected to an unlawful employment action, but ensures that compensation does not far exceed the goal of making a wronged employee whole. West Virginia was the sole outlier that allowed a flat front pay award with no caps and in turn put West Virginia’s employers at an unfair competitive disadvantage. The rationale for limits of front pay, like back pay, is that it should make a plaintiff whole, but not give the employee a windfall to relieve them from having to work again. Senator Trump was the lead sponsor of this legislation.
SB 411 - Creating Asbestos Bankruptcy Trust Claims Transparency Act and Asbestos and Silica Claims Priorities Act.This bill creates the Asbestos Bankruptcy Trust Claims Transparency Act and Asbestos and Silica Claims Priorities Act which establishes procedures for the handling of asbestos and silica litigation and enhances the ability of the judicial system to manage such litigation while enhancing the solvency of those trusts. Senator Takubo was the lead sponsor of this legislation.
SB 421 - Relating to punitive damages in civil actions.This bill clarifies when punitive damages may be awarded in civil actions, and limits the amount of punitive damages that may be awarded to four times compensatory damages or $500,000, whichever is greater. Senator Trump was the lead sponsor of this legislation.
SB 578 - Relating to occupational disease claims. This bill relates to authorization of compromise and settlement of occupational disease claims; permitting final settlement of medical benefits for non-orthopedic occupational disease claims; and requiring claimant be represented by legal counsel in these claims.
HB 2010 - Requiring the election of justices of the West Virginia Supreme Court of Appeals, circuit court judges, family court judges and magistrates be nonpartisan and by division.This bill provides for the nonpartisan election of judges and requires that elections of justices to the Supreme Court of Appeals, circuit court judges, family court judges and magistrates be nonpartisan and by division. This bill was one piece of legal reform legislation that received the strongest bipartisan support. The bill passed the Senate by an overwhelming 33-1 vote and the House by a 90-9 vote. Delegate Kessinger and Senator Trump were lead sponsors of this legislation.
HB 2726 - Clarifying choice of laws issues in product’s liability actions.This bill provides that public policy of this state is, in determining the law applicable to a product liability claim brought by a nonresident of this state against the manufacturer or distributor of a prescription drug or other product, all liability claims at issue shall be governed solely by the product liability law of the place of injury.
Thanks to WVTA Members
For those of you who got involved in the process, attended our Legislative Day, made phone calls or sent letters to your delegates and senators, we would like to thank you on behalf of our industry. Your voice does make a difference!
Congratulations
Senate President Bill Cole,House Speaker Tim Armstead,
Governor Earl Ray Tomblinand Members of the 82nd Legislature!
The 2015 Legislative Session will go down in history as one of the most impactful in recent memory for the passage of meaningful and holistic legal reform measures and initiatives to keep state government fiscally responsible.
Thank you for a truly productive legislative session!
Representing:
