NFIB

Session gets underway slowly
West Virginia's legislative session, which began Jan. 10, is off to a somewhat slow start. While 801 bills have been introduced in the House of Delegates and 434 in the Senate, only 25 have passed one chamber of the Legislature. Here is a sampling of small-business related bills that have been introduced. To track the bills and to find contact information for your legislators, please visit http://www.legis.state.wv.us/.

• H.B. 2019: Would make the use of permanent replacement workers an unfair labor practice in certain issues. Has not been considered in committee.
• H.B. 2113: Would change the amount a person can earn while receiving unemployment benefits. Has not been considered in committee.
• H.B. 2230: Would provide an employee the right to decline to work more than 40 hours in a workweek. Has not been considered in committee.
• H.B. 2310: Would extend unemployment compensation benefits when special circumstances exist. Has not been considered in committee.
• H.B. 2445: Would reduce and gradually eliminate the business franchise tax. Has not been considered in committee.
• S.B. 19: Would require a jobs impact statement for certain proposed legislation. Has not been considered in committee.
• S.B. 70: Would provide penalties for employing unauthorized workers. The purpose of the bill is to provide criminal penalties and fines for employers who hire unauthorized workers and to revoke or suspend business licenses where the employer has been convicted of employing unauthorized workers. The bill was amended in committee and now states that if an employer knowingly hires unauthorized or illegal workers which does make the bill more business friendly. The bill will be on second in the Senate on Monday, Feb. 5. We expect this bill to pass the Senate.
• S.B. 110: Relating to nonpartisan election of Supreme Court Judges. Has not been considered in committee.

Lawsuit abuse to be addressed?
An important tort reform bill is still in the process of being drafted. In the 1990s, West Virginia became an extremely attractive forum for plaintiffs, particularly in asbestos cases, because its trial courts ordered mass consolidations of thousands of individual asbestos claims. This put enormous pressure on defendants to settle and severely limited the ability of courts and defendants to focus on the merits of individual claims. Substantial percentages of these claims, probably a majority, were brought by nonresidents of West Virginia.

In 2003, NFIB/West Virginia along with other business groups, were successful in passing legislation in an attempt to curb this abuse by amending the state's venue statute to bar suits by a nonresident plaintiff unless a) a "substantial part" of the acts or omissions giving rise to the claim occurred in the state; or b) the plaintiff could not obtain jurisdiction against a defendant where the claim arose. In addition, the Legislature required that every plaintiff satisfy the new venue requirements so as to prevent out-of-state plaintiffs from riding on the coattails of a plaintiff for whom venue is proper.

Law needed in wake of Crown Equipment court decision
NFIB is fighting on your behalf after a difficult court decision.

In Crown Equipment, a plaintiff had been injured in Virginia while operating a forklift. He sued Crown Equipment, an Ohio corporation that designed and manufactured the forklift and a West Virginia company that had distributed and serviced the forklift. The trial court dismissed the case on the ground that no substantial part of the acts at issue occurred in West Virginia. The West Virginia Supreme Court of Appeals reversed. The court ruled that the privileges and immunities clause of the U.S. Constitution forbids West Virginia from barring suit by the nonresident against the West Virginia distributor, even though the operative events occurred outside West Virginia. Judges reasoned a West Virginia resident would be allowed to bring suit in the state under the same facts. The court also ruled that, once venue is proper as to the nonresident plaintiff's claims against the West Virginia defendant, it is also proper for plaintiff's claims against the Ohio manufacturer, Crown Equipment, which was surely the target defendant in the case.

The Crown Equipment decision opens the door again to litigation by large numbers of out-of-state plaintiffs in the West Virginia courts. Nonresident plaintiffs will be allowed to bring product liability and other mass litigation suits in West Virginia courts, without any showing of acts or omissions in the state, so long as each plaintiff can allege a colorable claim against one West Virginia defendant. We expect this will not be a difficult hurdle to overcome. As a result, West Virginia courts could again become overrun with asbestos or other mass tort cases that are attracted both by West Virginia's traditionally liberal rules on consolidations and by a desire to avoid rules in nearby Pennsylvania and Ohio requiring that asbestos plaintiffs demonstrate physical impairment in order to recover.

NFIB Legal Foundation signed on to an amicus brief last year with other business organizations on this case without success. NFIB is hopeful passage of legislation this session will deal with this anti-business situation. Please contact your elected officials via http://www.legis.state.wv.us/ and tell them to protect small business from frivolous lawsuits. Tell them to adopt legislation that addressed the inequities that have arisen in the wake of the Crown Equipment case.

John Hodges
NFIB/West Virginia State Director
wvhodges@suddenlink.net