This publication contains a Mid-Atlantic Regional Insurance and Tort Law survey which addresses the applicable law in those areas of particular interest to the liability insurance industry, in the States of New Jersey, Delaware, Pennsylvania, Maryland, Virginia, West Virginia and the District of Columbia. The survey is compiled by the Law Firm of Saunders & Schmieler, a general practice firm actively engaged as defense practitioners in all courts in the State of Maryland, Commonwealth of Virginia and The District of Columbia. The firm maintains offices in Montgomery County and Baltimore, Maryland as well as the District of Columbia, Arlington and Richmond, Virginia.

     Our Silver Spring office is centrally located so as to enable this firm to best service our multi-jurisdictional practice and is readily accessible to the courts located in the District of Columbia and Baltimore City and is located in the largest urban area adjacent to the new Southern District of the U.S. District Court for the District of Maryland which services Prince George’s, Montgomery, Calvert, Charles and St. Mary's Counties. Our office is a mere seven (7) minutes to the Courthouse.

     The firm specializes in the general practice of law particularly with respect to general trial and litigation legal services inclusive of insurance defense cases and litigation, general tort liability defense cases, personal injury defense litigation, medical malpractice defense litigation, environmental defense litigation, products liability defense litigation, premises liability defense litigation and construction accident liability defense litigation, and has extensive experience in a wide range of corporate and commercial law, contract law and general liability defense claims inclusive of, but not limited to, products liability, general tort liability, personal injury litigation, environmental litigation, toxic chemical litigation, toxic fume and contamination claims as well as occupational illness defense claims and Workmen's Compensation claims.

     A.     Negligence: For personal injury or property damage the limitation is three (3) years;[1]

     B.     Intentional Torts: For libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment the limitation period is one (1) year;[2]

     C.     Intentional Infliction of Emotional Distress: Court looks at the acts underlying the alleged infliction to determine the applicable statute of limitations;[3]

     D.     For the recovery of lands, or tenements: 15 years;[4]

     E.     For the recovery of personal property or damages for its unlawful detention: three (3) years;[5]

     F.     For a statutory penalty of forfeiture: one (1) year;[6]

     G.     On an executor’s or administrator’s bond: five (5) years; or any other bond or single bill, covenant, or other instrument under seal: twelve (12) years;[7]

     H.     On a simple contract, express or implied: three (3) years;[8]

     I.     For which a limitation is not otherwise specifically prescribed: three (3) years;[9]

     J.     And for the recovery of damages for an injury to real property from toxic substances including asbestos: five (5) years from the date the injury is discovered or with reasonable diligence should have been discovered.[10]

     K.     For claims under the Uniform Commercial Code: four (4) years.

C. VIRGINIA

     Five (5) years for claims involving property damage (whether personal or real); claims by parents for medical expenses incurred by minors; claims for breach of written contracts. (Virginia Code section s 8.01-243(b) and 8.01-246.

     Four (4) years for claims involving breach of contract for sale of goods under the Uniform Commercial Code. (Virginia Code section 8.2-725.)

     Three (3) years for claims involving breach of oral or implied contracts. Implied contracts include contracts for indemnification or contribution. (Virginia Code section 8.01-246.)

     Two (2) years for claims involving personal injury and fraud. (Virginia Code section 8.01-248.)

D. NEW JERSEY

1)     I year - Libel, slander

2)     2 years - Personal injuries, wrongful death, discrimination

3)     4 years - Contracts

4)     6 years - Trespass, injury to real or personal property, conversion, tortious injury to right other than personal injury, libel or slander, non U.C.C. contract claims

5)     10 years - State of repose

6)     20 years - Real estate or rents recovery

E. DELAWARE

1)     I year - Negligence v. City of Wilmington

2)     2 years - Wrongful death, personal injury, property damage, medical malpractice - 2 years from date of injury with outside of 3 years - 6 year toll for children

3)     3 years - Trespass

4)     4 years - U.C.C contracts

5)     6 years - Bonds

     * No general Statute of Limitations

F. PENNSYLVANIA

1)     6 months - Action against state

2)     1 year - Libel, slander, invasion of privacy, actions on bonds

3)     2 years - Assault, battery, false arrest, malicious prosecution, abuse of process, personal injury/negligence, personal injury/property damage based in negligence, intention or other tort

4)     3 years - Workers' Compensation

5)     4 years - Contract/U.C.C.

6)     5 years - Revival of joint lien - real property, specific perf.

7)     6 years - General statute of limitations

8)     20 years - Execution against personal property - writings under seal

9)     21 years - Possession or payment of any charges relating to real property

G. WEST VIRGINIA

     West Virginia Code section 55-2 et seq. provides for the following limitation of actions and suits.

     1)     2 years - Wrongful death, personal injury, injury to real or personal property, survival, medical malpractice;

     2)     4 years - U.C.C./Contract

     3)     5 years - Non- U.C.C. contracts

     4)     10 years - Recovery of lands

     As to accrual, the question of when a cause of action accrues is a judicial one to be decided by the Court and not the trier of fact. Jones v. Sugar, 18 Md. App. 99, 305 A.2d 219 (1973) . Generally limitations against a right or a cause of action begins to run from the day of the wrong. However, there are a number of causes of actions that it is not immediately apparent to the Plaintiff at the time the wrong was committed that damage has occurred. Under these types of situations, Maryland has held that the discovery rule is applicable.[11]

B. DISTRICT OF COLUMBIA

     In the District of Columbia the Statute of Limitations ordinarily begins to run from the time at which all of the elements of the Plaintiff's cause of action exist.[12] In D.C., actions on a contract begin to run from the time of breach.[13] The limitations period under the District of Columbia’s three (3) year limitations period for negligence begins to run when the Plaintiff suffers injury.[14] In determining when a legal malpractice claim accrues, the District of Columbia follows the "injury rule" under which claims for legal malpractice accrue when the Plaintiff suffers actual injury and not when the act causing the injury occurs.[15]

C. VIRGINIA

     A cause of action in Virginia accrues at the time of the injury and not at the time of discovery, except for limited situations involving medical malpractice cases and claims involving fraud. The statute of limitations does not begin to run for a minor until the minor has reached the age of eighteen (18) with the exception of medical malpractice cases involving minors (Virginia Code section 8.01-229.)

D. NEW JERSEY

     New Jersey courts hold that a tort action accrues not when the tortious conduct occurs, but when the consequential injury or damages occurs. Burd v. N.J. Tel. Co., 149 N.J. Super. 20, 372 A.2d 1355, aff’d 76 N.J. 284, 386 A.2d 1310 (1977). New Jersey also abides by the discovery rule, which tolls the statute of limitations until the plaintiff becomes aware of the injury or should have become aware of the injury. Ayers v. Jackson Tp., 189 N.J. Super. 561, 461 A.2d 184 (1983). The discovery rule does apply to medical malpractice cases. Morgan v. Napolitano, 71 N.J. 133, 363 A.2d 346 (1976).

E. DELAWARE

     The cause of action in a tort cases accrues at the time of injury. Howmet Corp. v. City of Wilmington, 285 A.2d 423 (Del. Super. Ct. 1971). The Delaware courts subscribe to the “inherently unknowable injury” theory, which tolls the statute of limitations until the injury manifests itself or becomes ascertainable. Issacson, Stopler & Co. v. Artisan’s Sav. Bank, 330 A.2d 130 (Del. Super. Ct. 1974). The Delaware courts also adhere to the continuing negligence theory, which allows the action to accrue when the negligence ends. Begar v. Dixon, 547 A.2d 620 (Del. Super. Ct. 1980).

F. PENNSYLVANIA

     The general rule in Pennsylvania is that the cause of action accrues at the time an act or omission occurs. The exception to this rule appears when the injury or damage is sustained after the act or omission, thus the action accrues when the damage and injury are sustained. Schwab v. Cornell, 160 A. 449, 306 Pa. 536 (1932). A medical malpractice case based on informed consent accrues at the time the medical procedure is performed, unless fraud or active concealment is pleaded and proved. Levenson v. Souser, 45 D. section C.3d 458 aff’d, 557 A.2d 1081. See also, Ayers v. Morgan, 48 Luz. L. Reg. 277 (1985). Pennsylvania also adheres to the doctrine of continuing wrong, which causes an action not to accrue until the cessation of the continuing wrong. Conduit and Foundation Corp. v. Municipal Authority of Lemoyne, 8 Cumb. 64, (1957).

G. WEST VIRGINIA

     West Virginia has adopted the discovery rule with respect to applicability of limitations periods in medical malpractice cases, and applicable limitations periods do not begin to run until plaintiff knows or by the exercise of due diligence should know that he has been injured, and the identity of the person or persons responsible. Slack v. Kanawah Co., 423 S.E. 2d 547 (1992). There is an outside limit of 10 years for medical malpractice cases. (W. Va. Code section 55-7B-4) however this limit does not apply to wrongful death actions.

     The is no automatic dismissal or a non-suit of an action once one has been filed in D.C. and the parties are at issue. Voluntary Dismissal in D.C. is set forth in D.C. Superior Court Rule 41.[16]

C. VIRGINIA

     In Virginia, a plaintiff has an absolute right to take a nonsuit to an action once it has been filed. (Virginia Code section 8.01-380.) The right to non-suit a case extends up until the time that the case has been submitted to a trier of fact for a decision. A plaintiff has six (6) months from the time of a non-suit within which to refile an action, or may refile an action during any remaining period of time left under the original statute of limitations, whichever period is longer. (Virginia Code section 8.01-229(e).)

D. NEW JERSEY

     New Jersey allows plaintiffs to dismiss actions. A plaintiff may dismiss an action without prejudice at any time before the plaintiff is served by a responsive pleading or by filing a stipulation of dismissal signed by all the parties appearing in the action. N.J. Rule 4:37-1. Otherwise a plaintiff cannot dismiss a case, without leave of Court. Id. If a plaintiff files a new suit based on the same cause of action and against the same defendant, the defendant can move for costs of the previous suit. N.J. Rule 4:37-4.

E. DELAWARE

     Dismissal of actions are permitted in both the Court of Chancery and Superior Court and are governed by the same language. See Court of Chancery Rule 41 and Superior Court Civil Rule 41. The plaintiff can dismiss an action without prejudice before any response by the adverse party or by filing a stipulation with all parties after a response is provided. A defendant may move to dismiss a case under this rule if the plaintiff fails to prosecute or does not comply with these Rules. The Court may on its own or any other party's motion dismiss a case that has been inactive for I year.

F. PENNSYLVANIA

     In Pennsylvania, a discontinuance is the exclusive method of voluntary termination of an action by a plaintiff before the commencement of trial Pa. R.C.P. No. 229 (1), 42 Pa. C.S.A. Formal application for a discontinuance to the Court is not required. After a discontinuance, a plaintiff may proceed on the same cause of action upon the payment of costs of the former action. Pa. R.C.P. No. 231(a). 42 Pa. C.S.A. Voluntary Non-Suit is the exclusive method for the plaintiff to voluntarily terminate an action during trial. Pa. R.C.P. No.230 42 Pa. C.S.A. Plaintiff may take a voluntary non-suit without leave of Court until the plaintiff has rested his case-in-chief, after which the allowance of the nonsuit is within the Court's discretion.

G. WEST VIRGINIA

     An action may be dismissed by the Plaintiff by filing a Notice of Dismissal prior to the filing of an Answer or Motion for Summary Judgment by the Defendant, or by filing a Stipulation of Dismissal signed by all parties. A matter will be dismissed for failure of a plaintiff to prosecute upon motion of the Defendant. Unless otherwise specified, in the order, a voluntary dismissal is without prejudice. R.C.P. 41.

     In the District of Columbia, if more than one excess indemnity policy applied to give claim arising out of asbestos exposure, thermal insulation manufacturer could designate which policy’s limits would apply in that case, but it could not “stack” policy limits.[17] In situations in which the District of Columbia No-Fault Motor Vehicle Insurance Act and the District of Columbia Workers’ Compensation Act applies benefits payable under Workers’ Compensation are primary over benefits payable under no fault. Thus, personal injury protection benefits must be paid by a self-insured employer only if benefits paid under Workers’ Compensation do not accord an injured individual the full measure of recovery he would receive from PIP benefits.[18]

C. VIRGINIA

     The term stacking (in the intra-policy context) refers to multiplying the policy limits of a particular coverage by the number of automobiles to which that coverage applies. (i.e., if stacking is permitted, med pay coverage with limits of $5,000 and four automobiles on the policy would provide $20,000 of med pay coverage to the insured). The Virginia Supreme Court has specifically ruled that Division I insureds (named insureds and all resident/relatives of his household) may stack med pay coverage.[19] Accordingly, Division I insureds may stack med pay and medical expense coverages up to four automobiles, assuming the insured's medical expenses exceed the combined amount.

     Division II insureds are comprised of individuals (Other than named insured and his resident/relative) who occupy and owned or non-owned automobile, with certain restrictions. An analysis of stacking begins (but does not necessarily end) with Nationwide Mut. Ins. Co. v. Shelton,[20] in which the Virginia Supreme Court ruled that, while Division I insureds may stack their med pay coverage, Division II insureds may not.

D. NEW JERSEY

     The New Jersey legislature has expressly stated that the stacking of uninsured motorist coverage policies is prohibited. N.J.S.A. 17:28-1.1 states as follows:

Uninsured and underinsured motorist coverage provided for in this section shall not be increased by stacking the limits of coverage of multiple motor vehicles covered under the same policy of insurance nor shall these coverages be increased by stacking the limits of coverage ' of multiple policies available to the insured. If the insured had uninsured motorist coverage available under more than one policy, any recovery shall not exceed the higher of the applicable limits of the respective coverages and the recovery shall be prorated between the applicable coverages as the limits of each coverage bear to the total of the limits.

E. DELAWARE

     In Delaware, an insurer is statutorily required to offer uninsured coverage to all insured, who have a right to reject that aspect of the policy 18 Del. C.A. section 3902. Delaware law does not permit stacking of uninsured vehicle coverage. “The affording of insurance under this action to more than one (1) person or to more than (1) vehicle shall not operate to increase the limits of the insurer’s liability. 18 Del. C.A. section 3902 (c). When the insured owns more than one vehicle and carries uninsured motorist coverage on each vehicle, only the policy for the vehicle may be utilized.

F. PENNSYLVANIA

     Until recently “uninsured” coverage was required by law in Pennsylvania. Now it is optional. Pennsylvania allows for the stacking of uninsured coverage benefits. See 75 Pa. C.S.A. 1738. When multiple policies exist, the policy covering the vehicle occupied by the injured person is first exhausted. After the exhaustion of the first policy, the policies covering other motor vehicles but under which the injured person is insured are looked to for recovery. See 75 Pa. C.S.A. section 1733. Pennsylvania allows the insured to waive his right to stacking the limits of coverage and purchase coverage which states the limits for the vehicle. In exchange, the insured receives a reduced premium rate which reflects the different cost of coverage. 75 Pa. C.S.A. section 1738. The recovery of both underinsured and uninsured benefits for the same accident is barred. Erie Ins. Exchange v. Danielson. 621 A.2d 656, 423 Pa. Super 524 (1993).

G. WEST VIRGINIA

     The West Virginia Uninsured Motorist Statute makes no mention of priority in primary coverage or stacking. The liability of two (2) insurers under two (2) policies should be evenly divided, and an insured simultaneously covered by two (2) uninsured motors policies may recover on both policies up to the limits of liability in each or the amount of judgment, whichever is less. W. Va. Code section section 17 D-1 et seq.

     The District of Columbia is a contributory negligence jurisdiction. Comparative negligence is not applicable in D.C. Contributory negligence of the plaintiff is a complete bar to recovery. Any negligence on the part of the Plaintiff which at all contributes to the injury, bars the Plaintiff from recovery. The defenses of contributory negligence and assumption of risk are not available, however, against employees in actions based on an employer’s breach of the statutory duty to provide reasonable safe working conditions for wage earners, except where the employee’s actions are willful, wanton or in reckless disregard for her/his own safety.[21]

C. VIRGINIA

     Virginia strictly applies a contributory negligence rule. The jury is instructed that they are not to compare the negligence of the plaintiff or the defendant. Once the issue of contributory negligence is submitted to a jury, the jury must find that the sole proximate cause of the injury was the defendant’s own negligence. Any negligence on the part of the plaintiff, which at all contributes to the injury, bars the plaintiff from recovery.

D. NEW JERSEY

     New Jersey does not recognize contributory negligence as a bar to recovery in a negligence action. N.J.S.A. 2A:15-5.1. New Jersey is a comparative negligence state and allocates liability and damages as follows:

In any negligence actions in which the question of liability is in dispute, including actions in which any person seeks to recover damages from a social host as defined in section C.2A:15-5.5 for negligence resulting in injury to the person or the real or personal property, the trier of fact shall make the following as findings of fact:

The amount of economic and non-economic damages which would be recoverable by the injured party regardless of any consideration of negligence, that is, the full value of the injured party's damages;

The extent, in the form of a percentage, of each party Is negligence. The percentage of negligence of each party shall be based on 100% and the total of fall percentages of negligence of all the parties to a suit shall be 100%. In an action in which a person seeks to recover damages from a social host for negligence resulting in injury to the person or to real or personal property, the negligence of any person. in becoming intoxicated shall be considered by the trier of fact, and the trier of fact shall allocate a percentage of negligence to that person.

     The judge shall mold the judgment from the finding, of fact made by the trier of fact.

     If one party pays more than their share, he is entitled to seek contribution from other parties. N.J.S.A. 2A:15-5.3.

E. DELAWARE

     The rule of contributory negligence was at one time firmly established in Delaware. See Jones v. Pennsylvania R. Co, 123 A.2d 111 (Del. Super 1956). Presently, Delaware is a comparative negligence state 10 Del. C.A.S. 8132 titled comparative negligence states:

In all actions brought to recover damages for negligence which results in death or injury to person or property, the fact that the plaintiff may have been contributorily negligent shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

F. PENNSYLVANIA

     In Pennsylvania, contributory negligence is a complete bar to recovery by the plaintiff. Crane v. Neal, 132 A.2d 675, 389 Pa. 329 (1957). The plaintiff is guilty of contributory negligence if he has not acted as a reasonably prudent person would have acted under the circumstances. Weschler v. Buffalo & Lake Erie Traction Co., 143 A. 119, 293 Pa. 472 (1928).

G. WEST VIRGINIA

     In King v. Kayak Mfg. Co., 387 S.E. 2d 511 (1989) the West Virginia courts adopted a system of comparative negligence in cases where the plaintiffs fault does not equal or exceed the combined negligence of the defendants. The comparative negligence standard was made retroactive to all cases tried after 11/9/89, regardless of the date of the occurrence. Where plaintiff’s negligence exceeds that of the Defendant(s), there is no recovery.

     In D.C., there is no statutory monetary limit to the amount of an award for punitive damages. Punitive Damages in the District of Columbia are appropriately awarded to penalize a Defendant for his or her conduct where his or her actions are accompanied by fraud, ill will, recklessness, or willful disregard of the Plaintiff's rights. They may be awarded only when there is also a verdict assessing compensatory or other actual damages.[22] Punitive damages generally are not awarded in contract actions and are available only where the alleged breach of contract merges with and assumes the character of a willful tort.[23]

     However, in view of Pacific Mutual Life Insurance Company v. Haslip, Supra, the existent law of punitive damages in the District of Columbia must be tempered by constitutional standards of due process both substantive and procedural.

C. VIRGINIA

     By statute in Virginia, punitive damages are insurable provided, however, that they do not arise out of the intentional act of the insured. Punitive damages are recoverable where the plaintiff is able to prove, by a preponderance of the evidence, that the actions of the defendant were willful or wanton, or that there was such recklessness as evidences a conscious disregard for the rights of others. Mere intoxication, without more, is not sufficient to establish a claim for punitive damages. Punitive damages are not recoverable for breach of contract unless there is a separate tort. Thus, there are no bad faith punitive damages for failure to pay a claim under an insurance policy unless there is an independent willful tort. The amount of punitive damages must bear some relation to the compensatory damage claim. The maximum punitive damages recoverable, by statute, cannot exceed $350,000. 00. (Virginia Code section 8. 01-3 8. 1. ). In a most recent case, Mattison v. Dallas Carrier Corp., VLW 91-B-320 J. Niemeyer, the Court held that a State Law for awarding punitive damages denied a defendant due process of law because it allowed the jury “to exercise unconstrained discretion in making its awards.” The decision, which is believed to be the first in the country to find a punitive damage award unconstitutional because the lack of due process protection, may provide a basis for challenging the scheme for awarding punitive damages.

     However, in view of Pacific Mutual Life Insurance Company v. Haslip, Supra, the existent law of punitive damages in the District of Columbia must be tempered by constitutional standards of due process both substantive and procedural.

D. NEW JERSEY

     New Jersey courts award punitive damages for two reasons: To punish for egregious conduct and to deter others from acting in the same manner. Monturi v. Englewood Hosp., 246 N.J. Super 547, 588 A.2d 408 (1991). De Angelis v. Jamesway Dept. Store, 205 N.J. Super. 519, 501 A.2d 561 (1985). There must be a showing of actual damage before punitive damages are awarded. O’Connor v. Harms, 111 N.J. Super. 22, 266 A.2d 605 (1970). New Jersey does not have a ceiling for punitive damages, but all relevant circumstances should be considered before making an award. Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 627 A.2d 1081 (1993).

E. DELAWARE

     Delaware Courts do allow for punitive damage awards. The purpose for awarding punitive damages is to punish the tort-feasor when his act is willful and wanton and to prevent others like him from committing similar acts. Riegal v. Aastad, 272 A.2d 715 (Del. 1970); Shepard v. A.C. and S. Co., Inc., 484 A.2d 521 (Del. Super. 1984). There must be a showing of actual damages before punitive damages can be awarded. Id. The State of Delaware does not adhere to a mathematical formula when awarding punitive damages but does consider the amount of compensatory damages when making a punitive award. Malcolm v. Little, 295 A.2d 711 (Del. 1972); Sheppard v. A.C. and S. Co., 484 A.2d 521 (Del. Sup. 1984).

F. PENNSYLVANIA

     Punitive or exemplary damages are not allowed unless actual damage has been suffered and the injuries are caused intentionally or due to reckless and wanton behavior. See Pennsylvania R. Co. v. Books, 57 Pa. 339 (1868). There appears to be no cap for punitive damages in Pennsylvania, and a jury can fix any amount subject to the reduction by the Court if the damages are excessive under the circumstances of the case. International Electronics Co. v. N.S.I. Metal Products Co., 88 A.2d 40, 370 Pa. 213 (1952). Punitive damages do not have to bear a reasonable relationship to the compensatory damage award., Kirkbridge v. Lisbon Contractors, 555 A.2d 800, 521 Pa. 97, on remand, 560 A.2d 809, 385 Pa.Super 292.

G. WEST VIRGINIA

     A finding of compensatory damages is necessary to support an award of punitive damages. La Placa v. Oden, 428 S.E. 2d 322 (1993). In order to support an award of punitive damages, an act must have been done maliciously, wantonly, mischievously or with a criminal indifference to civil obligations, however a showing of actual malice is not necessary. Punitive damages are available to punish the Defendant for "willfulness" or an intentional infliction of damages, but should bear a reasonable relationship to compensatory damages. Leach v. Biscayne Oil & Gas Co., 289 S.E. 2d 197 (1982).

     The District of Columbia recognizes strict liability in tort. D.C. has adopted a strict liability standard in products liability cases. Product misuse and assumption of the risk are defenses to strict liability, whereas contributory negligence is not. "Product Misuse" is defined as the use of a product in a manner that could not reasonably be foreseen by the Defendant.[24] In some situations, a Plaintiff's failure to read a warning may be a manufacturer's defense in a products liability action.[25] This defense may be overcome; however, by evidence that a properly worded warning would have been verbally communicated to Plaintiff in, for example, his or her work place.[26] An injured party has a cause of action against all parties who participated in placing the defective product into the stream of commerce.[27] The Plaintiff need not be a purchasers of the product, but can be an intended user of the comsumer.[28]

C. VIRGINIA

     Virginia does not recognize strict liability. A products liability action brought in Virginia must be based either on negligence, or be based on a breach of an implied or expressed warranty. These would include warranties of merchantability and fitness for a particular purpose. If a product is unreasonably dangerous, then the courts would generally find that there is a breach of warranty. The main difference between a breach of warranty claim for strict liability and a Restatement of Tort section 401 (a) claim for strict liability, is that, in Virginia, it is still possible to, under the appropriate circumstances, disclaim warranties. Lack of privity of contract is not a defense for a breach of warranty claim.

D. NEW JERSEY

     Products liability law in New Jersey is governed by statute N.J.S.A. 2A:58C-1 et seq. The following excerpts from the statute describe fully the extent of the law in New Jersey:

     In any product liability action, the manufacturer or sell shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer or seller provides an adequate warning or instruction. An adequate product warning or instruction is on e that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristic of, and the ordinary knowledge common to, the persons by whom the product was intended to be used, or in the case of prescription drugs, taking into account the characteristics of, and the ordinary knowledge common to, the prescribing physician. If the warning or instruction given in connection with a drug or device or food or food additive has been approved or prescribed by the federal Food and Drug Administration under the "Federal Food, Dug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. section 201 et seq., a rebuttable presumption shall arise that the warning or instruction is adequate. For purposes of this section , the terms "drug" "device", "food", and "food additive" have the meanings defined in the "Federal Food, Drug, and Cosmetic Act."

E. DELAWARE

     The Delaware Courts recognize products liability actions, but they do not recognize products liability actions based on the theory of strict liability. The Supreme Court of Delaware held that the theory of strict liability is precluded by the Uniform Commercial Code. Cline v. Prowler Indus. of Maryland, Inc., 418 A. 2d 968 (Del. 1980).

F. PENNSYLVANIA

     The law of products liability in Pennsylvania has been developed largely by case law and is primarily based on negligence or breach of warranty. Like many other states, Pennsylvania has adopted strict liability in products cases dealing with abnormally dangerous things and activities. Mazza v. Berlanti Const. Co., 214 A.2d 257, 206 Pa. Super 505 (1965). In 1966, the Pennsylvania Supreme Court extended the rule of strict liability to defective products by adopting the Restatement of the Law of Torts 2d. section 402A.

G. WEST VIRGINIA

     West Virginia has adopted strict liability in products liability cases to recover for property damage when defective product damages property only. Star Furniture v. Pulaski, 297 S.E. 2d 297 (1982). However the defense of assumption of the risk is available against the Plaintiff in a products liability case, King v. Kayak Mgt. Corp., 387 S.E. 2d 511 (1989), and the W. Va. Courts have held that "the doctrine that conditions or activities which are intrinsically dangerous will result in liability without proof of negligence will not be adopted into the state’s tort products liability law. "Morning Star v. Black and Decker, 253 S.E. 2d 666 (1979).

     D.C. has not adopted the Uniform Tortfeasor Act. In cases where the Plaintiff has settled the claim prior to trial with I or 2 or more joint tortfeasors, the Defendant remaining at trial is entitled to a set-off from the judgment based on the settlement. If the trier of fact has found the settling Defendant liable, a pro rata (based on the number of tortfeasors) reduction may be ordered.[29] The credit may be limited in a low verdict situation such that a Defendant found liable at trial at least will have to pay his or her pro rata share of the verdict.

     D.C. Rule 68 entitled "Offer of Judgment" states that any time, more than 10 days before trial begins, a party defending against a claim may serve upon the adverse party an offer to be taken against the defending party. This Rule is identical to its Federal counterpart.

C. VIRGINIA

     Virginia recognizes joint and several liability without any special limitations. If two or more defendants contributed to causing an injury, then both are liable. However, if an injury was caused by two separate acts, one of which the defendant is responsible for, and if the plaintiff is unable to prove what injuries were caused by the defendant, then the plaintiff is not entitled to recover for their injuries. Virginia requires that the plaintiff prove his case by a preponderance of the evidence, even when there are two possible causes and the defendant is only responsible for one of the two possible causes for the injuries. This rule is different than the rule applied in many jurisdictions where the burden shifts to the defendants to apportion who may be responsible for a particular injury.

     Virginia has adopted the rule that allowed for one joint tort feasor to enter into a release with the Plaintiff without releasing any other tortfeasor. Under Virginia Code section 8.01-35.1., a Plaintiff may settle with one joint tortfeasor, without releasing any other joint tortfeasor. A settling joint tortfeasor is not entitled to make a claim for contribution against the other joint tortfeasor. Nor can the other joint tortfeasor make a claim against the joint tortfeasor who has settled the claim. Virginia does not have a statutory procedure for offer of compromise and settlement, or offer of judgment.

D. NEW JERSEY

     New Jersey recognizes the theory of joint and several liability, in which two or more people who owe a duty, which each performs negligently, are held jointly liable. This remains true even though their duties may have been diverse or disconnected, as long as the acts caused an injury to the plaintiff. Melone v. Jersey Cent. Power & Light Co., 18 N.J. 163, 113 A.2d 13 (1955). New Jersey also adheres to the alternative, liability theory, in which the plaintiff is unable to determine which tortfeasor is actually liable for the injury, or what share the tortfeasors are liable. Lyons v. Premo Pharmaceutical Labs, Inc., 170 N.J. Super. 183, 406 A.2d 185 (1979) . If one tortfeasor pays more than his pro rata share, he is entitled to contribution from the others. See N.J.S.A. 2A:15-5.3.

E. DELAWARE

     Delaware recognizes joint and several liability. See 10 C.A. 6301. "Joint tortfeasors' means two (2) or more persons jointly or severally liability in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." Id. Neither the basis of liability nor the relationship among the joint tortfeasors is relevant. Blackshear v. Clark, 391 A.2d 747 (Del. Supr. 978). Joint tortfeasors do have the right to recover amongst themselves under the theories of contribution and indemnification.

F. PENNSYLVANIA

     Pennsylvania law holds joint tortfeasors jointly and severally liable to a plaintiff for the injury caused by their negligence. Rau v. Marko, 17 A.2d 422, 341 Pa. 17 (1941). Under Pennsylvania statutory law, recovery is allowed against each defendant for that portion of the total dollar amount of their causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount against any defendant, and the defendant who is compelled to pay more then his share may seek contribution. 42 Pa. C.S.A. section 7102.

G. WEST VIRGINIA

     Joint tortfeasors are jointly and severally liable, and if sued jointly both are liable to the extent proved. Kvdom v. Frazier, 412 S.E. 2d 219 (1991). A judgment against one tort-feasor is not necessarily an acquittal of the other. Plaintiff may only obtain satisfaction against one joint tort-feasor and that will bar recovery against the remaining tort-feasor, however, payment of a judgment by a party who is secondarily liable confers upon that party a right to reimbursement by the party which is primarily liable. Miller v. Monongahela Power Co., 403 S.E. 2d 406 (1991).

     The age of majority in D.C. is eighteen (18). [30] The District of Columbia adopts the tender years doctrine, not the Common law, wherein a child of tender years, depending on his age and knowledge, may not be charged with contributory negligence.[31]

     In the District of Columbia a child is liable for his torts as if he were an adult except where his tender years preclude him from framing the mental attitudes necessary to complete the tort in question.[32] In cases of tort requiring malice as an essential element, a very young child may be considered as a matter of law incapable of determining the requisite evil intent and no liability would attach to his act.[33] Lastly, with respect to negligent torts, the age of a child may prove to be a mitigating factor, since he is held liable only where he has failed to exercise a degree of care equal to that governing the ordinary child of comparable age, knowledge and experience.[34]

C. VIRGINIA

     The age majority in Virginia is eighteen (18). Virginia follows the common law rule concerning negligence by a minor. A minor under the age of seven (7) cannot be responsible for negligence. Between the ages of seven (7) and fourteen (14), there is a rebuttable presumption that a minor cannot be responsible for negligence, and over the age of fourteen (14), the minor can be responsible for negligence.

     While an individual is a minor, the statute of limitations does not run against that minor, except in medical malpractice cases. In medical malpractice cases, the injured minor has two (2) years after reaching the age of ten (10) within which to bring a claim.

D. NEW JERSEY

     New Jersey holds the age of majority to be 18 years old. N.J.S. A 99:17B. Minors are liable for intentional torts (acts of violence). See Guzy v. Gandel, 95 N.J. Super 34, 229 A.2d 809 (1967). Minors in New Jersey are held to the standard of care applicable to reasonable persons of like age, intelligence and experience under like circumstances. Goss v. Allen, 134 N.J. Super 99, 338 A.2d 820, reversed, 170 N.J. 442, 360 A.2d 388 (1975). Certain activities performed by minors are so hazardous that the courts will hold them to adult standards (driving car or boat) . Id.

E. DELAWARE

     In Delaware the age of majority is 18. 1 Del. C.A. section 701. Delaware provides statutory authority to recover up to $5,000.00 from the parents or guardian of a minor who intentionally or recklessly destroys personal or real property. 10 Del. C.A. section 3922. Delaware statutory law also holds the owner of a car jointly and severally liable with a minor who is permitted to use that car and does so in a negligent manner, causing injury and/or damage. 21 Del. C.A. section 6106.

F. PENNSYLVANIA

     Pennsylvania falls in line with the common law rule that minors are held to a different standard of care than adults. The yardstick measuring a minor's standard of care is by comparing the conduct to other minors of like age, experience, capacity, and development to see if they would ordinarily exercise the same conduct under similar conditions. Kuhns v. Brugger, 135 A.2d 395 390 Pa. 331 (1957) . There is a conclusive presumption that children under seven cannot be contributorily negligent. Dynes v. Bromley, 57 A. 1123, 208 Pa. 633 (1904) . There is a rebuttable presumption that children between the ages of seven and fourteen cannot be contributorily negligent, but this presumption is generally a matter for a jury determination. Kelly v. Pittsburgh Birmingham Traction Co., 54 A. 482, 204 Pa. 623 (1903). After the age of fourteen, there is no presumption. Furthermore, these age demarcations as to capacity are equally applicable to minor defendants as they are to minor plaintiffs. Berman by Berman v. Phil. Bd. of Ed., 456 A. 2d 545, 310 Pa. Super 153 (1983).

G. WEST VIRGINIA

     The age of a majority in West Virginia is eighteen (18) years of old.

     West Virginia law holds that a minor under the age of seven (7) years cannot be responsible for negligence. For children between the ages of seven (7) and fourteen (14) years, there is a rebuttable presumption that the minor cannot be responsible, and over the age of fourteen (14) years the courts have held that a minor can be shown to be responsible for negligence. W.Va. Code section 44-10-4 and S.H. v. R.S.H., 289 S.E. 2d. 186 (1982). Pursuant to W.Va. Code section section 55-7-Al and 7A2, parents can be found liable for up to $2,500 for any damages caused by a minor that is willful and malicious, any such action being in addition to any action against the minor.

     The District of Columbia does not have a Dram Shop Act Per Se.[35] However, the District of Columbia does prohibit the sale of alcoholic beverages to minors or already intoxicated persons.[36] D.C. Code section 25-121 states in pertinent part that the sale, service of delivery of beverages to any intoxicated person, or to any person of notoriously intemperate habits, or to any person who appears to be intoxicated.[37] While this section imposes an obligation upon commercial vendors of liquor to refrain from providing alcoholic drinks in circumstances indicating that a person is intoxicated and reasonably likely to cause harm to others, it has never been held to impose that duty upon social hosts.[38]

C. VIRGINIA

     Virginia does not recognize Dram-Shop Liability. However, Virginia does prohibit the sale of alcoholic beverages to persons under 21 years of age or an interdicted and/or intoxicated person.[39] In Virginia, there is no liability on the seller of intoxicating liquor for negligence resulting in personal injuries sustained by a third party.[40] section 4.1 - 304 of the Virginia Code and the Virginia Common Law does not recognize Dram Shop Liability on the part of the person who purveys an alcoholic beverage to someone else who then causes a tort to occur.[41]

D. NEW JERSEY

     New Jersey does have a Dram Shop Act, which holds alcohol beverage servers liable to third parties. N.J.S.A. 2A:22A et seq. "This act shall be the exclusive civil remedy for personal injury or property damages resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server. 11 N.J.S.A. 2A:22A-4. The licensed alcohol server may not be sued under any other theory or statute by the injured party. Furthermore, the statute states the precise conditions for which damages can be recovered:

     a.     A person who sustains personal injury or property damage as a result of the negligent service of alcoholic beverages by a licensed alcoholic beverage server may recover damages from a licensed alcoholic beverage server only if:
     (1)     The server is deemed negligent pursuant to subsection b. of this section ; and
     (2)     The injury or damage was proximately caused by the negligent service of alcoholic beverages; and
     (3)     The injury or damage was a foreseeable consequence of the negligent service of alcoholic beverages.
     b.     A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor.

     The statute limits the alcohol beverage server's liability for damages, which is the percentage of negligence attributable to the alcohol beverage server. N.J.S.A. 2A:22A-6.

E. DELAWARE

     At one time the state of Delaware did recognize a cause of action by a third-party against a tavern owner for injuries caused by a drunk patron. Taylor v. Ruiz, 394 A.2d 765 (Del. Super. 1978). The Delaware Court reversed itself holding that an action based on "Dram Shop" principles should be legislatively created and not created by the judiciary. DiOssi v. Maroney, 549 A.2d 1361 (Del. Super. Ct. 1988). There is a Delaware statute which creates a duty for alcohol licensees and their employees to stop serving patrons who are visibly intoxicated. 4 Del. C.A. section 706. The Court expressly stated in DiOssi that this section does not create a cause of action by a third party against a tavern owner. See also Oakes v. Megaw, 565 A.2d 914 (Del. Supr. 1989), which extends the bar to this type of action even if a tavern owner sold alcohol to minors.

F. PENNSYLVANIA

     Pennsylvania does not hold a liquor licensee liable to third parties for damages caused by a customer off the licensed premises unless the customer was visibly intoxicated. 47 P.S. section 4-497 (1965). Under any condition, the licensee can be held liable to third parties when they sell alcohol to minors. Mathews v. Korieczu, 527 A.2d 508, 515 Pa. 106 (1987). A social host may also be liable for furnishing minors with alcohol. Congini by Congini v. Protersville Value Co., 470 A.2d 515, 504 Pa. 157 (1983). The test for determining whether a social host is liable for injuries sustained by a minor as a result of alcohol is whether the host intentionally rendered substantial assistance to the minor's consumption, not whether the host actually served the minor. Jefferies v. Conn., 537 A.2d 355, 371 Pa. Super 12.

G. WEST VIRGINIA

     West Virginia statute recognizes a cause of action in tort for injuries proximately caused by the sale of alcohol to intoxicated persons or persons who are "physically incapacitated from drinking" which results in personal injury to a third party. Va. Code section 60-712 and section 55-7-9. Bailey v. Black, 394 S.E. 2d. 58 (1990). The sale of liquor to a person under twenty-one (21) years of age also gives rise to a cause of action against a licensee in favor of a purchaser or third party injured as a proximate result of the unlawful sale. W.Va. Code section 60-8-20(a).

     Indemnification: In D.C., indemnity is a common-law remedy which shifts the monetary loss from one compelled to pay it to another whom equity dictates should bear it instead.[42] Implied indemnity is essentially an equitable remedy that arises without agreement, and by operation of law to prevent result which is regarded as unjust or unsatisfactory.[43] In D.C., where the language of an indemnification agreement is broad and sweeping, the Court will construe the agreement liberally so as to encompass losses incurred in whole or part by the negligence of the indemnitee. [44] A cause of action for indemnity accrues on the date payment is made by the party seeking indemnity, which is three (3) years in D.C. for indemnification and contribution.

D.C. has no statute dealing with the effect of a release or settlement in respect to liability or contribution. However, D.C. has substantial case law on release and settlement.[45] D.C. recognizes either a pro rata deduction (1/2) or a pro tanto deduction (deduction for the amount the Defendant settled for) which recognizes a third party right of action against settling Defendants.

C. VIRGINIA

     Virginia Code section 8.01-249 (5) provides that an action for Indemnity is deemed to accrue when the indemnitee has paid or discharged a legal obligation. A third party claim for indemnity cannot be asserted before the cause of action is deemed to have accrued.[46] Recovery amongst joint tortfeasors, absent a contract is limited to Contribution. For active/passive negligence it is not the form of the act or omission that defines the character of negligence as active or passive, for indemnity purposes, it is the relationships between the parties involved and the nature of the legal obligation violated by the negligence that decides the issue.[47]

D. NEW JERSEY

     In the state of New Jersey, indemnification is a contractual right and not a statutory or common law right.

E. DELAWARE

     Delaware holds that indemnification is a contractual right. 10 Del section 6305. The Uniform Contribution Act states that no law involving contribution will effect the right to indemnification.

F. PENNSYLVANIA

     Indemnity is an equitable remedy founded in the common-law that shifts loss from one defendant to another. Potts v. Dow Chemical Co., 415 A. 2d 1220, 272 Pa. Super (1979). In Pennsylvania, an indemnification relationship may be formed in three ways: implied contract, expressed contract, or by operation of law, or other circumstances which justify this equitable relief. If an indemnitee made a good faith settlement and notice is given to the indemnitor, the indemnitee still assumes the risk of proving liability and the reasonableness of the settlement in any subsequent litigation. Daily Express, Inc. v. Northern Neck Transfer Corp., 490 F. Supp. 1304 (1980). The indemnitor is entitled to a trial by jury to determine whether or not liability existed and whether the contract of indemnity had been breached. Martinique Shoes, Inc. v. New York Progressive Wood Heel Co. , 217 A.2d 781, 207 Pa. Super. 404 (1966) .

G. WEST VIRGINIA

     An action for indemnification is recognized when an indemnitee has paid or discharged a legal obligation.

     Both contribution and indemnification are available under D.C. law.[48] However, neither contribution nor indemnity can be awarded to a party who is not a joint tortfeasor.[49] In other words, the District of Columbia permits a party to enforce contribution against one who shares common liability to the original Plaintiff.[50] Under the principal of contribution a tortfeasor against whom a judgment is rendered is entitled to recover proportional shares of a judgment from the other joint tortfeasor(s) whose negligence contributed to the injury and who were also liable to the Plaintiff.[51] For contribution to be available, two (2) or more Defendants must have acted in concert, or independently, causing a single injury in an indivisible manner. Just because the acts are not simultaneous but successive doesn't mean that contribution is improper where acts concur in causing injury.

C. VIRGINIA

     By statute in Virginia, one joint tort-feasor can seek contribution of another joint tort-feasor as a result of payment of a judgment. (Virginia Code section 8.01-35.) Contribution is generally limited to fifty percent (50%) of the amount of the judgment. As a general rule, a claim for indemnification is limited to claims based on contracts, although there is some argument that a claim for indemnification may be based on an active/passive negligence theory.

     Virginia was one of the last jurisdictions in the country to adopt a rule that allowed for one joint tortfeasor to enter into a release with the plaintiff without releasing any other joint tortfeasor. Under Virginia Code section 8.01-35.1, a plaintiff may settle with one joint tortfeasor, without releasing any other joint tortfeasor. A settling joint tortfeasor is not entitled to make a claim for contribution against the other joint tortfeasor. Nor can the other joint tortfeasor make a claim against the joint tortfeasor who has settled the claim.

D. NEW JERSEY

     By statute in New Jersey, a joint tort-feasor can seek contribution against another joint tort-feasor. See N.J.S.A. 4:48-4. New Jersey is a comparative negligence state, therefore each defendant is only liable for the pro rata share equaling the percentage of his negligence. "Any party who is compelled to pay more than his percentage share may seek contribution from the other joint tortfeasors.” N.J.S.A. 2A:15-5.3(e).

E. DELAWARE

     Delaware recognizes the right of contribution in 10 Del.C.A. section 6302, which states the following:

(a)     The right of contributions exists among joint tortfeasors.
(b)     A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.
(c)     A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.
(d)     When there is such a disproportion of fault among joint tort-feasors as to render inequitable an equal distributor among them of common liability by contribution, the relative degree of fault of the joint tort-feasors shall be considered in determining their pro-rata share.

P. PENNSYLVANIA

     Pennsylvania adheres to the Uniform Contribution Among Tortfeasors Act. 42 Pa. C.S.A. section 8322 et seq. The Act expressly states that contribution exists between joint tortfeasors, which is defined as two or more persons jointly and severally liable in tort for the same injury to persons or property. 42 Pa. C.S.A. section 7102 allows the defendant to seek contribution in the ratio amount for which the joint tortfeasor is causally liable. The Uniform Contribution Among Tortfeasors Act entitles a joint tortfeasor to a money judgment only when that joint tortfeasor has by payment discharged the common liability or paid more than their pro-rata share.

G. WEST VIRGINIA

     The West Virginia courts have recognized both an inchoate right of contribution as well as a statutory right of contribution. W.Va. Code section 55-7-13. Comparative contribution between joint tortfeasors is based upon relative degrees of negligence. Sitzes v. Anchor Motor Freight, 289 S.E. 2d 679 (1982) . The right of inchoate contribution arises under any theory of liability which results in a common obligation to the Plaintiff, Board of Education v. Zando, 390 S.E. 2d 796 (1990). If there is no allocation of negligence, apportionment is made on a pro-rata basis. "Mary Carter" agreements are enforceable and not per se contrary to public policy, however such agreements must be promptly disclosed to both the court and opposing parties.

     A.     Exclusiveness: Employer liability under the Act is exclusive and is in place of all other forms of liability. In other words, compensation to which an employee is entitled under the Worker’s Compensation Act is the employee's exclusive remedy against the employee referable to the claimants' injury or death.[52] If the employer fails to secure payment of the compensation due; however, the employee may claim compensation under the Act and secure payment from the Special Fund,[53] or maintain a civil action at law for damages.[54] If the employee chooses the latter, the employer may not plead the defenses of negligence of a fellow employee, assumption the risk, or contributory negligence.[55]

     B.     Third Party Liability: When an employee is injured as a result of the negligence of a 3rd party, the employee may claim compensation from his or her employer, file a civil suit against the 3rd party responsible, or do both. If an employee intends to file suit against the 3rd party, he must do so within six (6) months of the date he receives an award of workers' compensation. An award is defined as including only a formal order or decision, not a recommendation. An employee of a subcontractor may bring a third

party action against a negligent general contractor where all compensation benefits have been received from the subcontractor.[56] An employee of a subcontractor may not bring a 3rd party action if the general contractor provides compensation coverage for all subcontractors.

     C.     Statutory Employer: In Meiggs v. The Associated Builders, Inc., 545 A.2d 631, 634 (D.C. App.)(1988), the D.C. Court of Appeals held that a general contractor is only deemed the constructive employer of a sub-contractor's employee when the general contractor actually secures a defaulting contractor's compensation payments to an injured employee. In Meiggs, the subcontractor did secure payments to its employee. The Court ruled that since the general contractor did not secure payment of compensation to Meiggs under its contingent Sec. 36-303(c) duty, double liability was not possible, and no reason existed for engaging in the legal fiction for constructively deeming the general contractor, Meiggs' employer.

C. VIRGINIA

     Virginia strongly applies the exclusive remedy rule for workers' compensation. This rule even applies to intentional torts. All of the contractors and subcontractors working for a general contractor are entitled to the exclusive remedy benefit. The Worker's compensation statute is located at section 65.2-100 et seq. in the Code of Virginia.

D. NEW JERSEY

     New Jersey has a worker's compensation statute. N.J.S.A. 34:15-1 et seq. The New Jersey statute provides that when there is an employment relationship and the employee is injured while performing his employment, his exclusive remedy for damages is through worker's compensation. N.J.S.A. 34:15-8. The position of exclusivity has been reaffirmed many times by the New Jersey courts. See Fregara v. Jet Aviation Business Jets, 764 F. Supp. 940 (D.N.J. 1991); Jones v. New Jersey Mfrs. Cas. Ins. Co., 71 N.J. Super. 512, 177 A.2d 336 aff'd 77 N.J. Super. 147, 185 A.2d 678 aff'd 39 N.J. 555, 189 A.2d 711; Hall v. Hercules Powder Co., 20 N.J. Misc. 168, 26 A. 2d 164 (1942) . A general contractor shall be liable to subcontractors and their employees who are injured due to defective conditions of ways, works, machines or in plants which was not discovered by the employer due to his negligence. N.J.S.A. 34:15-3.

E. DELAWARE

     In the State of Delaware, Workmen’s Compensation serves two (2) primary purposes: Providing a scheme for assured compensation to employees for work related injuries without regard to fault and to relieve employers and employees of the burden of civil litigation. Champlain Cable Corp. v. Employers Mut. Liab. Ins. Co., 479 A2d 835 (Del. Supr. 1984); New Castle Court v. Goodman, 461 A. 2d 1012 (Del. Supr 1983). The latter purpose is expounded further by 19 Del. C.A. section 2304, titled "Compensation as exclusive remedy." section 2304 expressly states that the only form of recovery by an employee injured while in the course of employment is worker's compensation, "regardless of the question of negligence and to the exclusion of all other rights and remedies." Third parties are not bound by this Act. Ianire v. University of Del., 255 A.2d 687 (Del. Super 1969).

F. PENNSYLVANIA

     The Pennsylvania Worker's Compensation Act and Occupational Disease Act governs the rights of employees and their dependents to receive compensation for injury or death suffered by the employee arising in the course of and relating to the employment. 77 Pa. S.C.A. section 1 et seq. An employee is barred from suing his employer for any injury which would fall under the provisions of this Act. Boal v. Electric Storage Battery Co., 98 F. 2d 815 (1938). As a general rule, the Worker's Comp. Act is construed liberally. Dunn v. Treso, 124 A.174. 279 Pa. 518 (1924). This Act applies to work related injuries occurring within Pennsylvania. Arvoulas v. Magiana, 39 A.2d 263, 155 Pa. Super 577 (1944). The employee’s right to compensation is statutory, and the employer is liable without having to prove negligence or fault but this does not make the employer an insurer. Olin Corp. v. Workmen's Com. App. Bd., 324 A. 2d 813 (1974).

G. WEST VIRGINIA

     Worker's Compensation is the exclusive remedy for work related injuries, and the provisions of the act may not be waived. W.Va. Code section 23-2-7. The act takes from an employee his common law right to sue his employer. Belcher v. Richardson, 317 F. Supp 1294. There is a two year statute of limitations on filing claims, and a five (5) year time limit for reopening dormant cases. W.Va. Code 23-2 et seq.

     In D.C. when interpreting an insurance policy, the Court must first determine whether the language is plain and unambiguous and therefore controlling as a matter of law, or whether words are ambiguous and in need of interpretation through rules of construction, and objective evidence of the parties intent.[57]

     In construing ambiguous language of insurance contract, a court must consider objective evidence of insured's intent; the most important evidence is the interpretation that parties themselves give a contract, as manifested by their conduct subsequent to formation. Reasonableness of different interpretations of an insurance policy is determined by intent of insured, rather than the insurer.[58]

     Under District of Columbia law, terms of insurance policy, so long as they are clear and unambiguous, constitute an express contract between parties and must be enforced, unless they violate a statute or pubic policy.[59]

     Clear and unambiguous language should be construed according to its everyday meaning. Ambiguous policy language should be construed in favor of insured wherever reasonable.[60]

C. VIRGINIA

     Contracts of insurance are liberally construed to provide coverage and any ambiguity in the contract will be construed against, the insurance company and in favor of the insured.

     A standard contract may, except for cases involving common carriers, contain exculpatory clauses relieving the party of liability for their own negligence.

     Virginia has not adopted any broad reaching rules for allowing for recovery of extraordinary damages for breach of contract. Punitive damages are generally not recoverable for breach of contract unless there is a separate independent willful tort.

     Virginia has very few statutory rules concerning triggers of coverage and apportionment, except in motor vehicle cases. Determination of when coverage applies and apportionment between policies is usually made by reference to the policy language. Virginia applies the rule of construction that the policy is construed in favor of the insured and against the insurer and that in ambiguous situations, the policy is construed to find coverage.

D. NEW JERSEY

     The New Jersey courts view insurance contracts as adhesion contracts. See Longobardi v. Chubb Ins. Co. of New Jersey, 121 N.J. 530, 582 A.2d 1257 (1990). The New Jersey courts have taken the position that language in an insurance policy is ambiguous if the average policy holder cannot determine his rights and privileges. Rvan v. State Healthy Benefits Com’n, 260 N.J. Super 359, 616 A.2d 952 (1992); American White Cross Laboratories, Inc. v. Continental Ins. Co. , 202 N.J. Super 372, 495 A.2d 152 (1985). Generally, under New Jersey law, contracts for insurance are construed liberally and in favor of the insured. Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, aff'd 993 F.2d 877 (1992).

E. DELAWARE

     In Delaware, insurance policy contracts are considered contracts of adhesion and are always construed against the insurer who drafted it. Novellino v. Life Ins. Co. of North America, 216 A. 2d 420 (Del. 1966); Graham v. State Farm Mutual Auto Ins. Co., 565 A.2d 908 (Del. Super. 1989). The Courts of Delaware deem a contract to be ambiguous if it is susceptible to two or more interpretations. Delledonne v. State Farm Auto Ins. Co., 621 A.2d 350 (Del. Super 1992). If there is an ambiguity in the contract it will be construed in favor of the insured and against the insurer. Traveler's Indem. Co. v. Lake, 594 A.2d 38 (Del.Super. 1991).

F. PENNSYLVANIA

     The Court determines the construction of an insurance policy contract. Standard Venetian Blind Co. v. American Empire Ins. Co., 469 A.2d 563, 503 P. 300 (1983). The rules of construction only apply when the meaning of the contract is ambiguous. Enrlich v. U.S. Fidelity & Guaranty Co., 51 A. 2d 794, 356 Pa. 417 (1947). The Pennsylvania Courts construe insurance policy contracts liberally in favor of the insured and strictly against the insurer. Thomas v. Metropolitan Life Ins. Co., 131 A.2d 600, 388 Pa. 499 (1957).

G. WEST VIRGINIA

     A contract of insurance includes not only those terms expressly contained therein, but also those terms implied by law. Paxton v. Allstate Ins. Co., 663 F. Supp. 49 (S.D.W.Va, 1987). However, where the policy provisions are clear and unambiguous, and not contrary to statute, regulation or public policy, they will be applied and not construed judicially. Transamerica Ins. Co. v. Arbogast, 662 F. Supp. 164 (N. D. , W. Va. 19 87). When reasonable people can differ about the meaning of an insurance contract, all ambiguities will be construed in favor of the insured. D'Annunzio v. Security Connecticut Life Ins. Co., 410 S.E. 2d 275 (1991).

     A wrongful death action shall be brought by the personal representative of the Decedent.[61] A wrongful death action shall be brought within one (1) year after the death of the injured person.[62]

     Damages under the Wrongful Death Act go solely to the benefit of the spouse and next of kin. Pecuniary loss includes the present value of the Defendant's share of the Decedent's anticipated earnings. The damages also include the value of services lost to the family as a result of the decedent's death.[63] The reasonable expenses of the last illness and burial are also included in the damage calculation.[64]

     A survival action is brought by the legal representative of the decedent.[65] The damages in a survival action go to the benefit of the estate of the decedent, and are limited to the loss of the decedent's prospective net lifetime earnings discounted to present worth.[66] The Plaintiff may also recover for conscious pain and suffering suffered by the decedent prior to death.[67] Neither the survival statute or Wrongful Death Act provide for non-economic loss to family members.[68]

C. VIRGINIA

     Virginia allows a personal representative to bring an action for a claim for wrongful death. The general class of beneficiaries for a wrongful death claim are the surviving spouse, the children of the deceased, and any child of the deceased's children, or if there be none such, then the parents, brothers and sisters of the deceased, or if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents. Damages include sorrow, mental anguish and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent, compensation for the recently expected loss of income of the decedent, and service protection and care and Assistance provided by the decedent (there must be some showing that the decedent provided funds, money or support to the beneficiaries) expenses for the care, treatment, hospitalization of the decedent, incident to the injury resulting in death, reasonable funeral expenses and punitive damages. There is no cap on damages for wrongful death in Virginia.

section 8.01-50. Action for death by wrongful act; how and when to be brought.

A.     Whenever the death of a person shall be caused by the wrongful act neglector default of any person or corporation . . . such as would, if death had not ensued have entitled the party injured to maintain an action then, and in every shall be such case, the person who, or corporation that liable in an action for damages . . .

B.     Every such action under this section shall be brought by and in the name of I the personal representative of such deceased person within the time limits specified . . .

     It is to be noted that section 8.01-56 provides that an action shall not abate by death but rather the pleading should be amended so as to conform to an action under section 8.01-50 and proceed with as if the action had been brought under such section . In such cases, however, there shall be but one (1) recovery for the same injury. Under this section , after the death of the deceased Plaintiff, there can be no recovery for mental anguish, pain or suffering of the deceased. Seymour v. Richardson, 194 VA 709, 75 S.E. 2d 77 (1953).

D. NEW JERSEY

     New Jersey has a statutory cause of action for wrongful death N.J.S. A. 2A:31-1 et seq. The beneficiaries of a wrongful death action are those persons that could have had an intestate interest in the decedent's estate and in the proportion that they were entitled to take. N.J.S.A. 2A:31-4. Any action brought under the New Jersey Act must be commenced within 2 years after the death of the decedent. N.J.S.A. 2A:31-3. The New Jersey wrongful death statute is remedial in nature rather than penal, therefore punitive damages are not, awarded. Kern v. Kogan, 93 N.J. Super 459 226 A.2d 186 (1967).

E. DELAWARE

     Delaware has codified its wrongful death action in 10 Del. C.A. section 3721 et seq. The beneficiaries of such an action shall be a spouse, parent and children. If there are no beneficiaries as named above, an action can then be brought by any person related to the deceased by blood or marriage. The statute of limitations for a wrongful death action is two (2) years. 10 Del. C.A. section 8108.

F. PENNSYLVANIA

     A wrongful death action may only be brought by the personal representative of the decedent until six months after the death of the decedent. After that time, any person entitled by law may bring the action and act as trustee ad litem on behalf of all persons entitled to damages Pa. R.C.P. No. 2202, 42 Pa. C.S.A. When an action is brought in Pennsylvania to enforce rights arising under another jurisdiction, the laws of the other jurisdiction shall govern the action. Pa. R.C.P. No. 2207, 42 Pa. C.S.A. Beneficiaries include the following: spouse, children, or parents of the deceased. 42 Pa. C.S.A. section 8301. Wrongful death action must be commenced within one (1) year after death. 42 Pa. C.S.A. section 1722, 5524 .

G. WEST VIRGINIA

     West Virginia recognizes claims for wrongful death, as well as survival actions. W.Va. Gode section 55-7-8a. Damages in survival actions are limited to property damage, personal injury damages not resulting in death, and damages for fraud and deceit.

     The 1992 West Virginia Wrongful Death Statute provides for an action to be brought by the administrator of an estate for damages that to a jury or court "may seem fair and just" including, mental anguish, and solace, loss of services and income, costs of final illness, reasonable funeral expenses suffered "dependents", i.e. surviving spouse, children, stepchildren, brothers, sisters, parents and any persons who were financially dependent on the deceased. There is a two (2) year Statute of Limitations on such actions.

     Subject to the Motions deadline set forth in Rule 12-I (n), a Motion for Summary Judgment may be filed by a party seeking to recover on a claim at any time after twenty (20) days have expired from the commencement of the action or after service of a motion for Summary Judgment by an adverse party.[69] A defending party may move for Summary Judgment at any time prior to the Motions deadlines.[70] It is well settled that Summary Judgment is proper where the moving party establishes that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter of law.[71]

C. VIRGINIA

     Summary judgments in Virginia are very difficult to obtain since, by Rule of Court, depositions, testimony and affidavits may not be used to support a summary judgment. Virginia Rule 2:21 governs summary judgment motions.

D. NEW JERSEY

     A party may file a Motion for Summary Judgment at any time after 20 days from original service or after served with a Motion for Summary Judgment by an adverse party. N.J. Rule 4:4601. Summary Judgment can be based on pleadings, depositions, answers to interrogatories, admissions on file and affidavits. N.J. Rule 4:46-2 Summary Judgments are granted if the Court finds that there is no material fact challenged and that the moving party is entitled to judgment as a matter of law. The Court may award attorneys' fees at the end of trial to the prevailing party if the Court finds that the Summary Judgment Motion was denied due to a factual contention raised in bad faith by the opposing party. N.J. Rule 4:46-6.

E. DELAWARE

     Delaware permits Motions for Summary Judgment in both the Court of Chancery and Superior Court. See Court of Chancery Rule 56; and Superior Court Civil Rule 56. Although the rules use some different language, they both adhere to the same fundamental principles. A party may move for summary judgment twenty (20) days from the commencement of the action or after service of a motion for Summary Judgment by the adverse party. A Motion for Summary Judgment can be supported with pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. A party opposing a motion for summary judgment may not merely deny the factual allegations but must support the denial with items mentioned above. Tarzer v. International Ser. Indus. Inc., Del. Ch., 402 A.2d 382 (1979) .

F. PENNSYLVANIA

     A motion for summary judgment is governed by Pa. R.C.P. No. 1035, 42 Pa. C.S.A. The motion may be filed after pleadings have been closed but before such time that may cause a delay to the trial. A motion for summary judgment can be supported by pleadings, depositions, answers to interrogatories, admissions and supporting affidavits. The Court will grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rossi v. Penn St. Univ., 489 A.2d 828, 340 Pa. Super. 39 (1985). When considering the motion for summary judgment, the Court examines the record in the light most favorable to the non-moving party. Richard Mall Corp. v. Kasco Const., 486 A.2d 978, 337 Pa.Super. 204 (1984)

G. WEST VIRGINIA

     West Virginia's Summary Judgment Rule is derived from and substantially identical to FRCP 56. Affidavits in support are allowed, and the movant has the burden of proving that there exists no dispute of any material fact. R.C.P. 56

     To recover under the tort of Bad Faith refusal to pay, the Plaintiff must show that the insurer did not have a reasonable basis for denying benefits under the policy of insurance and that it knew or recklessly disregarded it and there existed a lack of a reasonable basis when it denied the claim.[72] Note: Equitable Estoppel prevents insurance companies from asserting the statute of limitations defense where the insurance company has made misleading representations to the insured and the insured has relied on those representations to his detriment.[73]

     The District of Columbia recognizes the theory of a first party bad faith claim.

C. VIRGINIA

     Virginia does not recognize an independent cause of action for bad faith failure to pay an insurance claim. At most, an insured is only entitled to recover attorneys' fees for bad faith failure to pay a first-party claim.

     Recovery from an insurance company for an amount in excess of the policy limits is only allowed were the insured can prove by clear and convincing evidence that the insurer's failure to settle with the policy limits was the result of an intentional disregard of the insureds interest for the financial benefit of the insurer.

     Virginia recognizes a limited "bad faith" theory of recovery.

D. NEW JERSEY

     New Jersey recognizes bad faith causes of actions based on both contract and tort theories. Picket v. Lloyd's, 131 N.J. 457, 621 A.2d 445 (1993). Under New Jersey law, the insurer's obligation with respect to settlement is to exercise good faith in dealing with offers of settlement. Having both the insured's and its own best interest in mind, the insurer must make reasonably diligent efforts to determine the facts and theories upon which a good faith judgment can be made as to an appropriate settlement. Kaudern v. Allstate Ins. Co., 277 F. Supp 83 (1967). This duty is increased when the insurerreserves full control, under the policy, to handle the claim. See Royal Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 323 A.2d 495 (1974).

E. DELAWARE

     Delaware does recognize a cause a action against an insurer for bad faith handling of a claim. When the insurer has sole control of the defense and the insurer tortiously settles a claim over the policy limits, the insured or excess insurer has a cause of action. Stilwell v. Pursons, 145 A.2d 397 (Del 1958) . In order for an insurer to avoid this type of action, it must enter into a settlement only if it is reasonable and made in good faith. Corrado Bros. v. Twin City Fire Ins. Co., 562 A.2d 1188 (Del. Super. 1989).

F. PENNSYLVANIA

     An insurer is required to act in good faith and determine the interest of the insured when deciding whether to litigate or settle. Walasavage v. Marinelli, 483 A.2d 509, 334 Pa. Super 396 (1984). An insurer may refuse to settle in good faith and has no absolute duty to settle a claim when the possible judgment against the insured exceeds the amount of coverage. U.S. Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306 (1985) . Neither the excess insurer nor the insured can recover from the primary insurer, when the insured approved the latter Is decision to go to trial. Puritan Ins. Co. v. Canadian Universal Ins. Co. , 775 F.2d 76 (1985). But a primary insurer can be held liable to an excess carrier for an amount in excess of the limits if the handling of the claim or settlement is evidenced by bad faith. Id.

G. WEST VIRGINIA

     An agreement of insurance to pay lawful damages on behalf of the insured constitutes a contract for the benefit of the person insured and may be enforced in an action, however, where the insurer acts reasonably, and without negligence in refusing proper settlement it meets its obligations to the insured. Daniels v. Hardemann Mut. Ins. Co., 422 F.2d 87 W.Va. (1970). Punitive damages may be awarded to an insured against its insurer for failure to settle a claim within policy limits, but the policy holder must establish a high threshold of actual malice in order to prevail. Shamblin v. Nationwide, 396 S.E. 2d. 766 (1990) . The West Virginia Statute renders unenforceable provisions in an insurance policy requiring arbitration of claims.