DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF WEST VIRGINIA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, West Virginia ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of West Virginia
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[General Counsel / Risk Management / Claims Representative]
[Manufacturer / Distributor / Retailer Name]
[Street Address]
[City, State ZIP]
RE: PRODUCTS LIABILITY CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date of Incident: [Date]
Product: [Product Name, Model Number, Serial Number]
Manufacturer: [Manufacturer Name]
Claim Number: [If assigned]
Dear [Recipient Name]:
This firm represents [Client Name] in connection with serious personal injuries caused by a defective [Product Name] designed, manufactured, distributed, and/or sold by your company. This letter constitutes our formal demand for settlement under West Virginia law.
I. WEST VIRGINIA PRODUCTS LIABILITY LEGAL FRAMEWORK
A. Theories of Liability
West Virginia recognizes multiple theories of recovery in products liability cases:
1. Strict Liability in Tort
West Virginia adopted Section 402A of the Restatement (Second) of Torts in Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 253 S.E.2d 666 (1979). A manufacturer or seller is strictly liable when it places a defective product on the market that is unreasonably dangerous to the user or consumer.
2. Negligence
A manufacturer has a duty to exercise reasonable care in the design, manufacture, testing, and warnings associated with its products. Beatty v. Ford Motor Co., 212 W. Va. 471, 574 S.E.2d 803 (2002).
3. Breach of Warranty
West Virginia recognizes claims under the Uniform Commercial Code for breach of express warranty (W. Va. Code Section 46-2-313), implied warranty of merchantability (Section 46-2-314), and implied warranty of fitness for a particular purpose (Section 46-2-315).
B. Statute of Limitations
Under W. Va. Code Section 55-2-12, the statute of limitations for personal injury claims is two (2) years from the date of injury. The discovery rule applies when the injury was not immediately known or discoverable. Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009).
C. Statute of Repose
West Virginia does not have a general statute of repose for products liability claims. Actions may be brought regardless of the age of the product, provided the statute of limitations is satisfied.
D. Design Defect Test
West Virginia applies a modified consumer expectations test combined with risk-utility balancing:
Consumer Expectations: A product is defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 253 S.E.2d 666 (1979).
Risk-Utility Balancing: Courts also consider whether the foreseeable risks of harm from the product outweigh the burden of taking safety measures. The availability of a reasonable alternative design is a relevant factor. Church v. Wesson, 182 W. Va. 37, 385 S.E.2d 393 (1989).
E. Comparative Fault
West Virginia follows modified comparative fault under W. Va. Code Section 55-7-13a. A plaintiff's recovery is reduced by their percentage of fault. If the plaintiff is 50% or more at fault, recovery is completely barred.
Comparative fault applies to products liability claims. King v. Kayak Mfg. Corp., 182 W. Va. 276, 387 S.E.2d 511 (1989).
F. Punitive Damages
West Virginia allows punitive damages where the defendant's conduct demonstrates:
- Actual malice; or
- Wanton, willful, or reckless conduct; or
- Criminal indifference to civil obligations affecting the rights of others
Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895); Berry v. Nationwide Mut. Fire Ins. Co., 181 W. Va. 168, 381 S.E.2d 367 (1989).
Statutory Limits (W. Va. Code Section 55-7-29): Punitive damages are limited to the greater of four (4) times compensatory damages or $500,000, with exceptions for certain egregious conduct.
Bifurcation Required: Under W. Va. Code Section 55-7-29, punitive damages must be determined in a bifurcated proceeding.
II. PRESERVATION OF EVIDENCE - CRITICAL NOTICE
YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this product and claim, including but not limited to:
Product-Related:
- The subject product and all component parts
- Design documents, specifications, and engineering drawings
- Manufacturing records and quality control documentation
- Testing data and safety assessments
- All versions of warnings, labels, and instructions
Complaints and Claims:
- Prior consumer complaints regarding this product
- Prior claims and lawsuits involving similar defects
- Regulatory correspondence and adverse event reports
Spoliation Warning: West Virginia courts recognize adverse inference instructions and sanctions for spoliation of evidence. Tracy v. Cottrell, 206 W. Va. 363, 524 S.E.2d 879 (1999). ANY DESTRUCTION OR ALTERATION OF EVIDENCE WILL RESULT IN SEVERE CONSEQUENCES.
III. THE DEFECTIVE PRODUCT
A. Product Identification
| Product Information | Details |
|---|---|
| Product Name | [Full Product Name] |
| Manufacturer | [Manufacturer Name and Address] |
| Model Number | [Model Number] |
| Serial Number | [Serial Number] |
| Date of Manufacture | [Date, if known] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
B. Chain of Distribution
The following entities are potentially liable under West Virginia products liability law:
| Entity | Role |
|---|---|
| [Manufacturer Name] | Manufacturer |
| [Component Supplier] | Component Manufacturer |
| [Distributor Name] | Distributor |
| [Retailer Name] | Retailer/Seller |
IV. THE DEFECT
A. Nature of Defect
[DESIGN DEFECT / MANUFACTURING DEFECT / FAILURE TO WARN - Select applicable]
[Detailed description of the defect, how it rendered the product unreasonably dangerous, and how it failed to meet consumer expectations]
B. Risk-Utility and Consumer Expectations Analysis
Under West Virginia law as established in Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 253 S.E.2d 666 (1979):
- An ordinary consumer would not expect [describe the dangerous condition]
- The product failed to perform as safely as an ordinary consumer would expect
- The risks of the design outweigh the utility of maintaining the dangerous condition
- A feasible alternative design existed that would have prevented the injury
V. THE INCIDENT AND INJURIES
A. How the Injury Occurred
On [Date], at approximately [Time], our client was [describe use of product] when [describe how the defect caused injury].
B. Injuries Sustained
As a direct and proximate result of the defective product, our client sustained:
Physical Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]
Medical Treatment:
- [Treatment summary]
Permanent Effects:
- [Describe any permanent conditions]
VI. DAMAGES
A. Economic Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Total] |
B. Non-Economic Damages
Under West Virginia law, our client is entitled to compensation for:
- Physical pain and suffering
- Mental anguish and emotional distress
- Loss of enjoyment of life
- Permanent impairment and disfigurement
C. Punitive Damages
[If applicable:]
Your company's conduct in [describe egregious conduct] demonstrates wanton, willful, or reckless disregard for consumer safety, warranting punitive damages under West Virginia common law (subject to the statutory cap under W. Va. Code Section 55-7-29).
D. Summary of Damages
| Category | Amount |
|---|---|
| Total Economic Damages | $[Amount] |
| Total Non-Economic Damages | $[Amount] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
VII. SETTLEMENT DEMAND
Based upon the clear liability of your company under West Virginia law and the substantial damages our client has sustained, we hereby demand:
$[DEMAND AMOUNT]
This demand will remain open for forty-five (45) days from the date of this letter, expiring on [Expiration Date].
If this matter cannot be resolved, we are prepared to file suit in the Circuit Court for [County] County, West Virginia, and pursue this matter through trial.
VIII. DOCUMENTATION ENCLOSED
☐ Medical records and bills
☐ Photographs of the defective product
☐ Photographs of injuries
☐ Employment and wage documentation
☐ Product documentation and warnings
☐ Expert reports (if available)
☐ [Other relevant documentation]
IX. CONCLUSION
This case involves a defective product that caused serious injuries to our client. The defect was present when the product left your company's control, and the injuries were entirely preventable.
We urge you to evaluate this claim seriously and respond with a reasonable settlement offer within the time allowed.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
West Virginia State Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
[File]
WEST VIRGINIA PRODUCTS LIABILITY PRACTICE NOTES
☐ Strict Liability Adopted: West Virginia follows Section 402A of the Restatement (Second) of Torts per Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 253 S.E.2d 666 (1979).
☐ Hybrid Design Defect Test: Consumer expectations test combined with risk-utility balancing.
☐ Modified Comparative Fault: 50% bar rule - plaintiff cannot recover if 50% or more at fault.
☐ No Statute of Repose: West Virginia does not limit products liability claims based on product age.
☐ Punitive Damages Cap: Greater of 4x compensatory or $500,000, with exceptions.
☐ Bifurcated Punitive Proceedings: W. Va. Code Section 55-7-29 requires separate determination of punitive damages.
☐ Expert Testimony: West Virginia follows Daubert standards for expert testimony. Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993).
☐ Joint and Several Liability: West Virginia modified joint and several liability - defendants generally liable only for their percentage of fault. W. Va. Code Section 55-7-13c.
☐ Mass Litigation Panel: Complex products liability cases may be assigned to the Mass Litigation Panel.
This template is specific to West Virginia law. Products liability law is complex and varies significantly by jurisdiction. This template must be customized for each case by a licensed West Virginia attorney.