THE good news is, West Virginia doesn't rank at the top of the American Tort Reform Association's annual "Judicial Hellhole" report, like it did five years ago.
The bad news is, the state is still in the top four, although "modest improvements" have inched the state below California, Louisiana and New York City.
Each year the association ranks "places where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants."
"Since [West Virginia] hit the No. 1 spot five years ago," the report states, "there have been some modest improvements, including a slight expansion of the appellate rights of litigants, an occasional well-reasoned decision that does not expand liability, and replacement of the state's notoriously plaintiff-friendly attorney general.
"Yet the past year indicates that the state's high court has not changed its ways . . . The litigation climate in the Mountain State remains one where businesses are subject to pro-plaintiff rulings, fear excessive liability, and lack full appellate review."
Yes, the Supreme Court has shown improvement, particularly by issuing written responses to all petitions. But, the report says the state Supreme Court recently "abandoned over a century of state precedent" by abolishing the "open and obvious danger doctrine," finding that property owners have a duty "to protect people from all hazards, obvious or not."
The report also cited an Ohio County trial court decision, affirmed by the Supreme Court, that allows the state to inflate punitive damage awards. "Apparently, West Virginia courts are punishing companies for having the audacity to defend themselves and exercise their right to appeal," the report states.
The report lists several other questionable decisions, including continued liability exposure for companies in workers' compensation cases.
"This system is not functioning properly in West Virginia," the report said of workers' comp, offering no mention of how much better that system functions today than 20 years ago.
The report says Attorney General Patrick Morrisey deserves credit for "bringing the hiring of outside counsel into the light. And West Virginia voters deserve credit for choosing good-government reform over more of the same old shady dealings that had damaged their state's reputation."
"Digging out of a judicial hellhole is not easy," the report concludes, "but it can be done when both citizens and policymakers grab shovels and work together."
Let's get out the shovels.