365 years of American case law. Essentially every published opinion.

Maverick research memo · grounded in retrieved statutes & cases

West Virginia Auto-Injury Claim — Drunk Driver Strikes Client's Partially-Parked Disabled Vehicle (Pocahontas County)

Deadline to sue: two-year limitations period

A personal-injury action in West Virginia must be brought within two years after the cause of action accrues; the client's negligence claim against the other driver is governed by this two-year period. (W. Va. Code § 55-2-12)

Analysis — Calendar the two-year date from the accident and file well ahead of it; do not let settlement discussions with any liability or UM/UIM carrier run the clock. A separate contractual/notice deadline may apply to the client's own uninsured/underinsured motorist claim (see the UM/UIM section), so treat that clock independently.

Analysis — Verify the exact accident date. The facts give a day of week and time but not a calendar date; the limitations cutoff, and which version of several statutes cited below applies, both turn on the accrual/filing date.

Source text:

Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.

W. Va. Code § 55-2-12

Liability of the intoxicated driver — intoxication as prima facie negligence

In any civil action arising out of acts allegedly committed while driving under the influence, evidence of the driver's blood-alcohol amount is admissible, and a concentration of eight hundredths of one percent (0.08) or more is admitted as prima facie evidence that the person was under the influence of alcohol. (W. Va. Code § 17C-5-8)

Violation of a traffic statute constitutes prima facie negligence in West Virginia, but the plaintiff must still prove the violation was a proximate cause of the accident. (Smith v. Penn Line Service, Inc., 113 S.E.2d 505, 145 W. Va. 1 (W. Va. 1960))

Analysis — The reported reading of BAL 9.2 cannot be a blood-alcohol concentration; the statutory threshold is expressed as eight hundredths of one percent (0.08). It most likely reflects 0.092, but the true figure and units must be confirmed, because a result of 0.08 or higher carries prima facie effect that the driver was under the influence, whereas a lower number does not. Obtain the breath-test record, the instrument's calibration/maintenance logs, and the operator's certification.

Analysis — That neither driver was charged does not defeat the civil claim. A criminal conviction is not a prerequisite, and the statute makes the blood-alcohol evidence admissible in the civil action itself. Consider a Freedom of Information request for the crash report, breath-test results, and any officer notes explaining why no charge issued.

Source text:

(2) Evidence that there was, at that time, more than five hundredths of one percent and less than eight hundredths of one percent, by weight, of alcohol in the person's blood is relevant evidence, but it is not to be given prima facie effect in indicating whether the person was under the influence of alcohol; (3) Evidence that there was, at that time, eight hundredths of one percent or more, by weight, of alcohol in his or her blood, shall be admitted as prima facie evidence that the person was under the influence of alcohol. (c) A determination of the percent, by weight, of alcohol in the blood shall be based upon a formula of: (1) The number of grams of alcohol per one hundred cubic centimeters of blood; (2) The number of grams of alcohol per two hundred ten liters of breath; or (3) The number of grams of alcohol per eighty-six milliliters of serum. (d) A chemical analysis of blood for the purpose of determining the controlled substance or drug concentration of a person's blood, must include, but is not limited to, the following drugs or classes of drugs: (1) Marijuana metabolites; (2) Cocaine metabolites; (3) Amphetamines; (4) Opiate metabolites; (5) Phencyclidine (PCP);

W. Va. Code § 17C-5-8

The drunk driver is jointly and severally liable — a key collectibility advantage

West Virginia generally makes each defendant severally, not jointly, liable only for the share of compensatory damages matching that defendant's percentage of fault. (W. Va. Code § 55-7-13C)

As an exception to several liability, a defendant whose conduct constitutes driving under the influence of alcohol and is a proximate cause of the plaintiff's damages is jointly and severally liable for the damages. (W. Va. Code § 55-7-13C)

Analysis — This matters enormously for recovery. If the intoxication is proven a proximate cause, the drunk driver can be pursued for the entire compensatory judgment, not merely his allocated percentage. Still confirm his assets and auto liability limits early, because a judgment is only as good as it is collectible; where he is underinsured, the client's own UIM coverage becomes the practical target (below).

Analysis — Confirm the effective date and applicability of the several-liability statute (the 2015/2016 comparative-fault scheme) to a cause of action accruing on the client's accident date before relying on the joint-and-several DUI provision.

Source text:

(1) A defendant whose conduct constitutes driving a vehicle under the influence of alcohol, a controlled substance, or any other drug or any combination thereof, as described in section two, article five, chapter seventeen-c of this code, which is a proximate cause of the damages suffered by the plaintiff; (2) A defendant whose acts or omissions constitute criminal conduct which is a proximate cause of the damages suffered by the plaintiff; or (3) A defendant whose conduct constitutes an illegal disposal of hazardous waste, as described in section three, article eighteen, chapter twenty-two of this code, which conduct is a proximate cause of the damages suffered by the plaintiff. (i) This section does not apply to the following statutes: (1) Article twelve-a, chapter twenty-nine of this code; (2) Chapter forty-six of this code; and (3) Article seven-b, chapter fifty-five of this code.

W. Va. Code § 55-7-13C

Punitive damages against the drunk driver

Punitive damages may be awarded only if the plaintiff establishes by clear and convincing evidence that the harm resulted from the defendant's actual malice toward the plaintiff or a conscious, reckless and outrageous indifference to the health, safety and welfare of others, and any award is capped at the greater of four times compensatory damages or $500,000. (W. Va. Code § 55-7-29)

Analysis — Driving while intoxicated is a strong candidate for the conscious, reckless and outrageous indifference standard. Develop evidence bearing on reprehensibility: the degree of intoxication, any prior DUIs or license revocation, speed, and conduct after the crash. Plead punitive damages and be prepared for a bifurcated trial, which the statute allows on a defendant's request. Note the statutory cap when valuing the case.

Analysis — Verify whether the West Virginia Supreme Court has applied the Section 55-7-29 standard and cap in a motor-vehicle injury verdict, and check for any subsequent amendments to the statute, before finalizing the punitive-damages theory and valuation.

Source text:

(a) An award of punitive damages may only occur in a civil action against a defendant if a plaintiff establishes by clear and convincing evidence that the damages suffered were the result of the conduct that was carried out by the defendant with actual malice toward the plaintiff or a conscious, reckless and outrageous indifference to the health, safety and welfare of others. (b) Any civil action tried before a jury involving punitive damages may, upon request of any defendant, be conducted in a bifurcated trial in accordance with the following guidelines: (1) In the first stage of a bifurcated trial, the jury shall determine liability for compensatory damages and the amount of compensatory damages, if any. (2) If the jury finds during the first stage of a bifurcated trial that a defendant is liable for compensatory damages, then the court shall determine whether sufficient evidence exists to proceed with a consideration of punitive damages.

W. Va. Code § 55-7-29

The client's own conduct — comparative fault and the parking/stopping statute (the defense the other side will raise)

Outside a business or residence district, no person may stop, park, or leave a vehicle on the paved or main-traveled part of the highway when it is practicable to leave it off the roadway; however, this prohibition does not apply to a vehicle that is disabled while on the paved portion in such a manner that it is impossible to avoid stopping and temporarily leaving it there. (W. Va. Code § 17C-13-1)

Under the modified comparative-fault standard, a plaintiff's fault does not bar recovery unless it is greater than the combined fault of all other persons responsible; if the plaintiff's fault is less, recovery is reduced in proportion to the plaintiff's percentage of fault. (W. Va. Code § 55-7-13A; W. Va. Code § 55-7-13C)

Even where a stopped or parked vehicle violated a lighting or parking statute, the plaintiff cannot recover on that theory unless the violation was a proximate cause, and the burden rests on the approaching driver to use due care to avoid colliding with a lawfully parked vehicle. (Smith v. Penn Line Service, Inc., 113 S.E.2d 505, 145 W. Va. 1 (W. Va. 1960))

Fault may be allocated to a nonparty; a defending party may cause a nonparty's fault to be considered by giving notice no later than 180 days after service of process identifying the nonparty and the basis for the claimed fault, and any recovery is then reduced by the nonparty's share. (W. Va. Code § 55-7-13D)

Analysis — Expect the defense to argue the client was contributorily at fault for leaving his left wheels about two feet on the pavement and to invoke the stopping statute. The disabled-vehicle exception is the client's best answer: a blown tire, no spare, and the danger of changing a tire in a travel lane support that it was impossible to avoid leaving the car partly on the pavement, and he pulled as far right as possible, set four-way flashers, and called a wrecker. Marshal facts on whether it was practicable to get fully off the road (shoulder width, terrain, guardrail), lighting, and how visible the car was, and consider a sudden-emergency framing. Because the other driver was intoxicated and had a duty to avoid a visible stopped vehicle, aim to keep the client's share well below the combined fault of others; even a modest allocation only reduces, and does not bar, recovery so long as it stays under that threshold.

Analysis — Develop the record proactively on the client's own care so the jury allocates minimal fault: photographs of the scene and flashers, the wrecker call time, weather, and any warning steps taken. Anticipate that the defense may also point to seat-belt use and other conduct; preserve and evaluate that evidence.

Source text:

(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway. (b) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100; upon a second conviction within one year thereafter, shall be fined not more than $200; and upon a third or subsequent conviction, shall be fined not more than $500. (c) This section shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.

W. Va. Code § 17C-13-1

Source text:

(c) Any fault chargeable to the plaintiff shall not bar recovery by the plaintiff unless the plaintiff's fault is greater than the combined fault of all other persons responsible for the total amount of damages, if any, to be awarded. If the plaintiff's fault is less than the combined fault of all other persons, the plaintiff's recovery shall be reduced in proportion to the plaintiff's degree of fault. (d) Notwithstanding subsection (b) of this section, if a plaintiff through good faith efforts is unable to collect from a liable defendant, the plaintiff may, not later than one year after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later, move for reallocation of any uncollectible amount among the other parties found to be liable. (1) Upon the filing of the motion, the court shall determine whether all or part of a defendant's proportionate share of the verdict is uncollectible from that defendant and shall reallocate the uncollectible amount among the other parties found to be liable, including a plaintiff at fault, according to their percentages at fault:

W. Va. Code § 55-7-13C

Possible alcohol-provider (dram shop) liability of a licensed establishment

A licensee, or a person acting on its behalf, who sells, furnishes, or serves alcohol is generally not civilly liable for injury caused by the resulting intoxication, unless it knowingly served a person who was not of lawful drinking age or who was visibly intoxicated at the time, and the service was a proximate cause of the injury; knowingly means knew or should have known under the totality of the circumstances. (W. Va. Code § 60-7-12B)

Visible intoxication requires objective signs of intoxication, and a person's blood-alcohol content or number of drinks consumed does not by itself constitute prima facie evidence of visible intoxication, though it may be admissible as relevant evidence; by its terms this provision applies to cases filed on or after August 1, 2025. (W. Va. Code § 60-7-12B)

Analysis — A 2:00 a.m. crash suggests the driver may have been drinking at a licensed bar or club near closing. Investigate immediately where he drank before the crash and whether staff continued serving him while he showed objective signs of intoxication; a viable Section 60-7-12b claim would add an insured, potentially solvent defendant. Move fast to preserve receipts, point-of-sale and ID-scan records, surveillance video, and server/patron witness accounts before they are lost. Note the statute limits past-medical recovery and caps punitive damages at twice compensatory where the licensee carries at least 1 million/2 million in liquor-liability insurance.

Analysis — Confirm the applicable version of the dram-shop statute for this case. The visible-intoxication cause of action described applies to cases filed on or after August 1, 2025; if the claim will be filed earlier, check which statutory or common-law rule governs and whether any prior version or common-law limitation applies. West Virginia has historically been restrictive toward tavern and social-host liability, so verify the controlling rule for the client's filing date.

Source text:

(a) Notwithstanding any other provision of this article to the contrary, a licensee or person acting on the licensee’s behalf who sells, furnishes, or serves an alcoholic beverage to a person is not thereby liable in a civil action for damages for injury, death, or damage caused by or resulting from the impairment or intoxication of the person who was furnished the alcoholic beverage, including injury or death to other individuals, unless either of the following circumstances apply: (1) The licensee or person acting on the licensee’s behalf knowingly sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age; or (2) The licensee or person acting on the licensee’s behalf knowingly sells, furnishes, or serves alcoholic beverages to a person who was visibly intoxicated at the time the alcoholic beverage was furnished.

W. Va. Code § 60-7-12B

The client's own uninsured/underinsured motorist (UM/UIM) coverage — protect it before settling

West Virginia enforced a consent-to-settle provision in an underinsured-motorist policy, holding that an insured who settles a claim with the tortfeasor without first obtaining the insurer's written consent, where the claim involves or potentially involves UIM coverage, can thereby void that coverage. (Arndt v. Burdette, 434 S.E.2d 394, 189 W. Va. 722 (W. Va. 1993))

West Virginia provides a statutory procedure to preserve UIM coverage: when the tortfeasor's liability insurer offers its policy limits conditioned on the UIM carrier waiving subrogation, the claimant or liability insurer may give the UIM carrier written notice, and the UIM carrier then has sixty days to preserve subrogation by paying the claimant an amount equal to the offered limits, failing which it is deemed to have waived subrogation and the claimant may consummate the settlement. (W. Va. Code § 33-6-31E)

Analysis — Because the drunk driver may carry only minimal limits, the client's own UIM coverage may be the real source of recovery. Immediately identify every potentially applicable UM/UIM policy (the client's own, and policies of resident relatives, given West Virginia's treatment of anti-stacking language), and give prompt written notice of the claim to each carrier. Do not release the drunk driver or accept his liability limits without either the UIM carrier's written consent or strict compliance with the Section 33-6-31e notice-and-waiver procedure, or the client risks forfeiting UIM benefits.

Analysis — Verify current UM/UIM notice and consent requirements and any policy-specific deadlines against the actual policies, and check whether the client's UIM policy excludes punitive damages, before deciding how and when to settle with the tortfeasor. Late notice can still bar recovery where the carrier shows prejudice, so document the reason for any delay.

Source text:

Consequently, we hold that a consent-to-settle provision of an automobile insurance policy pertaining to underinsured motorists coverage whereby an insured voids his underinsurance coverage by settling a claim with a tortfeasor without first obtaining the insurer’s written consent 10 when such claim involves either the insured’s underinsurance coverage or potentially involves that coverage is a valid and enforceable means by which an insurer may protect its statutorily-mandated right to subrogate claims pursuant to West Virginia Code § 33-6-31(f). 11 It is clear in this case that the Appellants violated the consent-to-settle provision in their insurance policy issued by Appellee since neither the Appellants nor their attorney obtained the Appellee’s written consent to settle with Mr. Lehman and Allstate prior to actually settling the case and signing the written release. II. Next, the Appellants assert that the settlement agreement entered into with Mr. Lehman does not violate the subrogation clause of their insurance policy 12 and further, that the Appellee’s claims that its subrogation rights were prejudiced are invalid.

Arndt v. Burdette, 434 S.E.2d 394, 189 W. Va. 722 (W. Va. 1993)

What this search did not surface

Maverick did not retrieve authority on the points below. That is a statement about what this search surfaced, not a finding that no such authority exists — do not rely on the absence.

• A West Virginia appellate decision construing the 2025 amendments to the alcohol-provider liability statute, W. Va. Code 60-7-12b
• West Virginia case law directly addressing the comparative fault of a motorist who left a disabled vehicle partially on the paved roadway with hazard flashers activated after a tire failure
• Confirmation from a full opinion (rather than a search summary) that the West Virginia Supreme Court has applied the W. Va. Code 55-7-29 punitive-damages standard and cap in a drunk-driving injury verdict

---

Maverick verified each displayed claim against the retrieved source text. Check all work — the law changes. Confirm case treatment, and check statutes against the current code, before relying on this research.