West Virginia Personal Injury Laws and Statutes of Limitations

The basics of West Virginia personal injury laws—deadlines to sue, limits on compensation, auto insurance requirements, and more.

By , Attorney · University of Missouri–Kansas City School of Law

You've been injured in West Virginia. Maybe you were hurt by a careless doctor, in a car accident, or by a fall on dangerous property. Before you file a personal injury (PI) insurance claim or a lawsuit, take a few minutes to learn about several West Virginia laws that might control your case.

We'll walk you through the basics of West Virginia's auto insurance system, deadlines for filing lawsuits in court, what happens if you're partly to blame for your accident, and more.

Statutes of Limitations on West Virginia Personal Injury Lawsuits

All states have statutes of limitations for personal injury cases—a deadline by which which you must file your PI lawsuit in court or lose your right to sue forever. We begin with West Virginia's general two-year statute of limitations. From there, we'll review some special rules and exceptions that apply in particular cases.

General Rule: Two Years From the Date of Injury

West Virginia's personal injury statute of limitations general rule is found in W. Va. Code § 55-2-12(b) (2024). A personal injury lawsuit must be filed within two years after the claim "accrued." Typically, a PI claim accrues when you're injured. As a general rule, then, you've got two years from the date you're injured to file a personal injury lawsuit in West Virginia court.

Medical Malpractice Cases

West Virginia law includes several special deadlines for medical malpractice cases.

Medical Malpractice Cases: General Rule

Most West Virginia medical malpractice lawsuits must be filed within two years from the date of injury. If you don't know right away that you're injured, West Virginia's "discovery rule" might give you extra time to file. Under the discovery rule, you have two years from the date you discovered or reasonably should have discovered your injury to file suit.

If you're relying on the discovery rule, another special deadline applies. Regardless of when (or if) you discover your injury, a law called a "statute of repose" provides that the latest you can file a malpractice lawsuit is 10 years after the date of your injury. (W. Va. Code § 55-7B-4(a) (2024).)

Medical Malpractice Cases: Nursing and Assisted Living Facilities

If you're suing a nursing home or an assisted living facility, you've got one year from the later of the date you were injured or the date you discovered or reasonably should have discovered your injury to file your malpractice case. You can't file suit later than 10 years after the date of your injury. (W. Va. Code § 55-7B-4(b) (2024).)

Medical Malpractice Cases: Children Younger Than 10

When a child younger than 10 years old is injured by medical malpractice, a lawsuit must be filed by the later of:

  • two years from the date the child was injured, or
  • the day before the child's 12th birthday.

(W. Va. Code § 55-7B-4(c) (2024).)

Limitation Period Tolled by Fraud

The medical malpractice limitation period is "tolled" (temporarily paused) during any period when the health care provider fraudulently conceals or misrepresents material facts about your injury. (W. Va. Code § 55-7B-4(d) (2024).)

Prefiling Notice Requirement

Not less than 30 days before filing a medical malpractice lawsuit, you must provide each health care professional you plan to sue with written notice of your claim. (W. Va. Code § 55-7B-6 (2024).) The notice must:

You should consider hiring an experienced West Virginia medical malpractice attorney to assist you with your malpractice lawsuit.

Legally Disabled Persons

When an injured person is legally disabled—meaning younger than 18 years old or "insane"—the applicable limitation period doesn't begin to run until the disability is removed. The disability is removed when a child turns 18 or when an "insane" person is found to be "sane." (W. Va. Code § 55-2-15(b) (2024).)

Here, too, West Virginia has enacted a statute of repose. A legally disabled person has a maximum of 20 years, usually from the date of injury, to file a PI lawsuit.

Person Who Injured You Leaves the State or Goes Into Hiding

If a West Virginia resident injures you and then leaves the state or goes into hiding, the statute of limitations clock doesn't run—as to that person—while they're out of West Virginia or in hiding. The limitation clock does run as to others who might be responsible for your injuries. (W. Va. Code § 55-2-17 (2024).)

Lawsuits Against West Virginia

At least 30 days before you file a PI lawsuit against a "government agency" (as defined in W. Va. Code § 55-17-2(2) (2024)), you must provide written notice of your claim and the relief you're requesting to both the chief officer of the agency and the West Virginia Attorney General. The notice must be sent via certified mail, return receipt requested. (W. Va. Code § 55-17-3(a)(1) (2024).)

Lawsuits Against West Virginia Political Subdivisions

Generally speaking, the statute of limitations rules for suits against a West Virginia political subdivision (as defined in W. Va. Code § 29-12A-3(c) (2024)) are much the same as those discussed above.

  • Two-year limitation period. You have two years from the later of the date you were injured or the date you discovered or reasonably should have discovered your injury to file suit. (W. Va. Code § 55-12A-6(a) (2024).)
  • Children younger than 10. A child who is younger than 10 when injured has until the later of two years from the date they were injured or the day before their 12th birthday to sue. (W. Va. Code § 55-12A-6(b) (2024).)

What If You're Partly to Blame for the Accident?

In a typical personal injury case, to collect compensation for your injuries (what the law calls "damages"), you must prove that the other party (the "defendant") negligently caused your injuries. Quite often, the defendant will claim that you were at least partly to blame for the accident. The goal of this defense, called "comparative negligence," is to reduce or eliminate the damages you can recover in a lawsuit.

West Virginia recognizes a modified version of this comparative negligence defense. (W. Va. Code § 55-7-13a(b) (2024).)

West Virginia's Comparative Negligence Rule

When you're partly to blame for an accident, your percentage share of the total negligence simply reduces the damages you can collect, but only if you're not more than 50% at fault. If you're found mostly to blame—51% or more negligent—then you can't recover any damages at all. (W. Va. Code § 55-7-13c(c) (2024).)

Example: West Virginia Comparative Negligence

You were shopping in the grocery store one afternoon. Because you were looking for items on the shelves, you didn't see a broken floor tile in your path. You tripped and fell on the tile, injuring your knee. You sued the store for negligence. The store responded that you, too, were negligent because you didn't watch where you were going.

After a trial, the jury finds your total damages are $50,000. Jurors assess 70% of the negligence to the store. But they agree that you should have watched where you were going, and they assign 30% of the negligence to you. How much of your total damages can you collect?

You were 30% to blame, so you can collect 70% of your damages: $50,000 x 70% = $35,000. The store's insurance company will write you a check for that amount. What would be the outcome had the jury decided you were 51% (or more) negligent? Under West Virginia's modified comparative fault rule, you'd collect zero damages.

West Virginia's Auto Insurance System

Like most states, West Virginia has adopted a fault-based auto insurance system. What does that mean?

Say you're injured in a collision with a negligent driver. Under West Virginia's fault-based auto insurance law, to collect damages for your injuries you'll have to file an insurance claim or a PI lawsuit against that driver. If you prove the other driver was at fault, you can collect both economic and noneconomic damages.

Economic damages cover your medical bills, lost wages, amounts you pay for replacement household services, and other out-of-pocket expenses. Noneconomic damages compensate you for injuries like pain and suffering, emotional distress, loss of enjoyment of life, and more.

While a fault-based auto insurance system gives you the opportunity to collect all of your damages from the responsible party, there's a downside. Bringing an insurance claim or a lawsuit can be both expensive and time-consuming. Even a simple car wreck lawsuit can take nearly a year to get from filing to trial. If an appeal follows, the process will take much longer.

(Learn more about West Virginia's auto insurance requirements.)

Does West Virginia Limit Damages in a Personal Injury Case?

Many states have enacted limits, called "caps," on personal injury damages. Noneconomic damages for injuries like pain and suffering and emotional distress are a favorite cap target. So are punitive damages, which are intended to punish wrongdoers for extreme or outrageous misbehavior.

Some states limit damages in all PI cases. Others have caps that apply only to specific kinds of suits, like medical malpractice cases. West Virginia has enacted several damage caps.

Caps in Medical Malpractice Cases

Noneconomic damages in a medical malpractice case are capped at $250,000 per occurrence, regardless of the number of people injured. (W. Va. Code § 55-7B-8(a) (2024).) That amount can increase, but not to more than $500,000 per occurrence, when the damages are awarded for:

  • a permanent, substantial physical deformity
  • loss of use of a limb, or loss of a "bodily organ system," or
  • an injury that permanently prevents the person from doing independent self-care or life-sustaining activities.

(W. Va. Code § 55-7B-8(b) (2024).)

Under W. Va. Code § 55-7B-8(c) (2024), these cap amounts are increased annually for inflation, but can't exceed 150% of their original amounts.

Caps on Punitive Damages

"The amount of punitive damages that may be awarded in a civil action may not exceed the greater of four times the amount of [economic and noneconomic] damages or $500,000… ." (W. Va. Code § 55-7-29(c) (2024).)

Lawsuits Against the Government

In a lawsuit against a West Virginia political subdivision (described above) or its employees:

Punitive damages are also barred in a suit against a West Virginia state government agency (described above). (W. Va. Code § 55-17-4(3) (2023).)

Get Help With Your West Virginia Personal Injury Case

We've covered a few of the basics of West Virginia personal injury law. If you've been hurt by another and you're thinking about an insurance claim or a lawsuit, there's much more you need to know. For example, and experienced personal injury lawyer knows about claim valuation and settlement practices in your area. They also know where and how to file your personal injury lawsuit in court.

Long story short: Your best chance at a fair outcome will come from having experienced legal counsel on your side. If you're ready to move forward, here's how to find an attorney who's right for you.

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