In the 2023 West Virginia Legislative Session, new legislation was passed to cap damages in deliberate intent cases. House Bill 3270 amends West Virginia Code § 23-4-2 and the deliberate intent exception to the exclusive remedy of workers’ compensation insurance for employee recovery for workplace injuries. The amendments limit noneconomic damages to $500,000 and heightens the burden of proof in deliberate intent cases based on occupational pneumoconiosis. The bill was effective 90 days from passage on June 8, 2023. The new legislation is not retroactive and applies to causes of action accruing on or after July 1, 2023.

House Bill 3270 created a new section W. Va. Code § 23-4-2a. Under this new law, the maximum amount recoverable as compensatory damages for noneconomic loss in any deliberate intent lawsuit may not exceed the higher of two times the economic damages before the workers’ compensation offset or $500,000 for each person, regardless of the number of plaintiffs or defendants or, in the case of wrongful death, the number of distributees.

House Bill 3270 also sets a higher standard of proof necessary to bring a deliberate intent case when the underlying workplace claim is for occupational pneumoconiosis, set forth in W. Va. Code § 23-4-2(d)(2)(B)(v)(IV). The new law added a threshold requirement that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”

This legislation is a win for employers. Despite this legislation, the tight insurance market is still making it difficult for employers to obtain coverage for deliberate intent claims. Carriers are reluctant to write West Virginia Broad Form Coverage as “stand-alone” and carriers will exclude coverage for deliberate intent causes of action or are not agreeable to add the coverage to policies. Coverage also is not available on West Virginia Assigned Risk Workers’ Compensation policies. In some circumstances, insureds may receive notices of nonrenewal and no alternative carriers are provided. It is imperative to discuss these issues with your broker and carrier well before renewal to prevent a lapse in coverage.