IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term FILED 

May 21, 2015 

RORY L. PERRY II, CLERK 

No. 14-0158 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MODULAR BUILDING CONSULTANTS OF WEST VIRGINIA, INC. and
 

BILLY JOE MCLAUGHLIN,
 

Defendants/Third-Party Plaintiffs Below, Petitioners
 

v. 

POERIO, INC., 

Third-Party Defendant Below, Respondent 

Appeal from the Circuit Court of Putnam County
 

The Honorable Joseph K. Reeder, Judge
 

Case No. 11-C-277
 

AFFIRMED
 

Submitted: March 10, 2015
 

Filed: May 21, 2015
 

Brent K. Kesner, Esq. Benjamin T. Hughes, Esq.
 

Ernest G. Hentschel, II, Esq. PULLIN, FOWLER, FLANAGAN,
 

KESNER & KESNER, PLLC BROWN & POE, PLLC
 

Charleston, West Virginia Charleston, West Virginia
 

Attorneys for Modular Building Attorney for Respondent
 

Consultants of West Virginia, Inc. and
 

Billy Joe McLaughlin
 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
 

JUSTICE BENJAMIN concurs in part and dissents in part and reserves the right to file a
 

separate opinion.
 

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “The appellate standard of review for an order granting or denying a 

renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the 

West Virginia Rules of Civil Procedure [1998] is de novo.” Syl. Pt. 1, Fredeking v. 

Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). 

2. “When this Court reviews a trial court’s order granting or denying a 

renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West 

Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the 

facts to determine how it would have ruled on the evidence presented. Instead, its task is 

to determine whether the evidence was such that a reasonable trier of fact might have 

reached the decision below. Thus, when considering a ruling on a renewed motion for 

judgment as a matter of law after trial, the evidence must be viewed in the light most 

favorable to the nonmoving party.” Syl. Pt. 2, Fredeking v. Tyler, 224 W.Va. 1, 680 

S.E.2d 16 (2009). 

3. “In determining whether there is sufficient evidence to support a jury 

verdict the court should: (1) consider the evidence most favorable to the prevailing party; 

(2) assume that all conflicts in the evidence were resolved by the jury in favor of the 

prevailing party; (3) assume as proved all facts which the prevailing party's evidence 

tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences 

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which reasonably may be drawn from the facts proved.” Syl. Pt. 5, Orr v. Crowder, 173 

W.Va. 335, 315 S.E.2d 593 (1983). 

4. “Although the ruling of a trial court in granting or denying a motion 

for a new trial is entitled to great respect and weight, the trial court’s ruling will be 

reversed on appeal when it is clear that the trial court has acted under some 

misapprehension of the law or the evidence.” Syl. Pt. 4, Sanders v. Georgia-Pacific 

Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). 

5. “When jury verdicts answering several questions have no logical 

internal consistency and do not comport with instructions, they will be reversed and the 

cause remanded for a new trial.” Syl. Pt. 1, Reynolds v. Pardee & Curtin Lumber Co., 

172 W. Va. 804, 310 S.E.2d 870 (1983). 

6. “Once comparative fault in regard to contribution is recognized, 

recovery can be had by one joint tortfeasor against another joint tortfeasor inter se 

regardless of their respective degree of fault so long as the one has paid more than his pro 

tanto share to the plaintiff.” Syl. Pt. 4, Sitzes v. Anchor Motor Freight, Inc., 169 W. Va. 

698, 289 S.E.2d 679 (1982). 

7. “A party in a civil action who has made a good faith settlement with 

the plaintiff prior to a judicial determination of liability is relieved from any liability for 

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contribution.” Syl. Pt. 6, Bd of Educ. of McDowell Co. v. Zando, Martin & Milstead, 

Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990). 

8. “The law favors and encourages the resolution of controversies by 

contracts of compromise and settlement rather than by litigation[.]” Syl. Pt. 1, in part, 

Sanders v. Roselawn Mem’l Gardens, 152 W. Va. 91 159 S.E.2d 784 (1968). 

9. Where a tortfeasor settles with an injured plaintiff and obtains a 

release for a joint tortfeasor, such release preserves the settling tortfeasor’s right of 

contribution against the released joint tortfeasor. 

10. “In order to obtain a proper assessment of the total amount of the 

plaintiff’s contributory negligence under our comparative negligence rule, it must be 

ascertained in relation to all of the parties whose negligence contributed to the accident, 

and not merely those defendants involved in the litigation.” Syl. Pt. 3, Bowman v. 

Barnes, 168 W. Va. 11, 282 S.E.2d 613 (1981). 

11. “It is improper for counsel to make arguments to the jury regarding 

party’s omission from a lawsuit or suggesting that the absent party is solely responsible 

for the plaintiff’s injury where the evidence establishing the absent party’s liability has 

not been fully developed.” Syl. Pt. 2, Doe v. Wal-Mart Stores, Inc., 210 W. Va. 664, 558 

S.E.2d 663 (2001). 

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12. “‘The common law is not to be construed as altered or changed by 

statute, unless legislative intent to do so be plainly manifested.’ Shifflette v. Lilly, 130
 

W.Va. 297, [43 S.E.2d 289 1947].” Syl. Pt. 4, Seagraves v. Legg, 147 W.Va. 331, 127
 

S.E.2d 605 (1962).
 

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WORKMAN, Chief Justice: 

This is an appeal from the circuit court’s denial of petitioner Modular 

Building Consultants of West Virginia, Inc.’s (hereinafter “Modular”) motion for 

judgment as a matter of law or for a new trial following an adverse jury verdict on 

Modular’s claims for contribution and indemnification. Modular contends that 1) the 

jury’s finding that respondent Poerio, Inc. (hereinafter “Poerio”) was negligent is 

inconsistent with its finding that Poerio did not breach the lease agreement; 2) the circuit 

court erred in ruling that Modular’s contribution claim was extinguished by its good faith 

settlement with the injured plaintiff; and 3) the circuit court erred in allowing the injured 

plaintiff’s comparative fault to be assessed by the jury. 

Upon careful review of the briefs, the appendix record, the arguments of 

the parties, and the applicable legal authority, we conclude that the circuit court erred in 

finding that Modular’s contribution claim was extinguished as a matter of law. However, 

we further find that the jury’s verdict was neither inconsistent nor impermissibly 

considered the comparative fault of the injured plaintiff. We find, therefore, that 

judgment was properly entered in favor of Poerio and affirm the order of the circuit court. 

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I. FACTS AND PROCEDURAL HISTORY 

On July 14, 2011, Jarrett Smith (hereinafter “Mr. Smith”) was injured when 

his vehicle collided with a truck owned by Modular, operated by Billy Joe McLaughlin 

(hereinafter “Mr. McLaughlin”). Just prior to the collision, Mr. McLaughlin had arrived 

at a jobsite at Geary Elementary School to retrieve a Modular storage container being 

leased and utilized by respondent Poerio, the general contractor on the project. Upon 

arrival at the jobsite, Mr. McLaughlin testified that the main entrance was blocked by 

stacks of bricks and vehicles, requiring him to utilize the construction entrance located 

closer to where the storage unit was sitting. Upon attempting to access the construction 

entrance, Mr. McLaughlin testified that he was unable to pull his truck fully into the 

jobsite because the clearance he required was partially obstructed by the storage container 

itself and a white work van. As a result, he stopped his truck while it was protruding into 

the main roadway and exited his vehicle to adjust the truck’s axle, allowing him to make 

a tighter turn into the jobsite and clear the white work van and container. Upon Mr. 

McLaughlin’s return to his vehicle to continue pulling into the jobsite, Mr. Smith collided 

with Mr. McLaughlin’s truck sustaining serious injuries. At trial, Poerio offered 

witnesses to testify that the main entrance was in fact not obstructed by bricks or vehicles 

at the time of the accident. 

The lease agreement between Modular and Poerio for the subject storage 

container contained indemnity language requiring Poerio to indemnify Modular from 

“any loss, cost or expenses and from any liability to any person on account of damage to 

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person or property arising out of any failure of [Poerio] to comply in any respect with 

and perform any of the requirements and provisions of this Lease.” (emphasis added). As 

pertains to this case, the lease required Poerio to “provide free and clear access for 

delivery and return of the Equipment by standard mobile transport vehicles.” 

Mr. Smith filed suit against Modular, alleging negligence. Modular then 

brought a third-party complaint against Poerio, making claims for contribution and 

indemnification pursuant to the lease agreement. Specifically, Modular claimed that 

Poerio breached the provision of the lease agreement requiring it to provide “free and 

clear access” for return of the storage container.1 Notably, Mr. Smith asserted no direct 

claims against Poerio at any time. Shortly before trial was to commence, Modular settled 

with Mr. Smith and obtained a release from him releasing both Modular and Poerio.2 

Trial as to Modular’s third-party complaint proceeded and the jury was asked to 

1 The lease further provided that Poerio “shall not remove the Equipment from the 

location specified by [Poerio] without prior written approval from [Modular.]” Although 

at trial, there was some discussion about the fact that Poerio had moved the storage 

container from its original location without Modular’s permission (along with argument 

that “removal” of the equipment from the site was different than moving it to another 

location within the site), Modular ultimately conceded that it did not base its contention 

that Poerio breached the lease on this provision. 

2 Modular settled with Mr. Smith and his wife, in exchange for which Mr. Smith 

and his wife expressly released both Modular and Poerio. The Release further contained 

language stating that “[n]othing contained within this Release of All Claims is intended 

to, nor should the same be construed to represent any release or discharge of [Modular’s] 

third-party claims for contribution and/or indemnification against Poerio, which claims 

are expressly preserved.” The Release further states that “[Modular] act[s] specifically to 

preserve their right to recover contribution and/or indemnification from Poerio and/or its 

insurer for those sums paid to the claimants pursuant to this Release of All Claims[.]” 

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determine 1) whether Poerio breached its lease agreement with Modular; and 2) whether 

Poerio, Modular, or Mr. Smith were negligent and in what percentages. The jury found 

that Poerio did not breach the lease agreement, but found that Poerio was twenty percent 

at fault for the accident. The jury also assigned twenty percent of fault to Modular and, 

critically, assigned sixty percent of fault to Mr. Smith. Upon entry of the judgment order, 

the circuit court entered judgment in Poerio’s favor on its contribution claim on the basis 

of the apportionment of fault and as a matter of law based upon Jennings v. Farmers Mut. 

Ins. Co., 224 W. Va. 636, 687 S.E.2d 574 (2009), which the circuit court read to 

extinguish the contribution claim upon Modular’s settlement with Mr. Smith.3 

Modular filed a motion for judgment as a matter of law, or alternatively, a 

new trial. First, Modular argued that the jury’s finding that Poerio did not breach the 

lease agreement was inconsistent with its finding that Poerio was negligent. Modular 

contended that the only possible way Poerio could have been negligent for the subject 

accident was by failing to provide free and clear access to the storage unit and that failing 

to provide free and clear access was a violation of the lease agreement. Without 

specifically reconciling the two jury findings, the circuit court concluded that it was 

exclusively the jury’s province to weigh the evidence and could make both findings. 

Secondly, Modular argued that its contribution claim was not extinguished by settling 

3 The circuit court apparently reconsidered the propriety of allowing the 

contribution claim to go to the jury, which issue had been raised prior to trial and decided 

in favor of Modular. 

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with Mr. Smith because unlike the settling party in Jennings, it had obtained a release for 

both its and Poerio’s liability as part of the settlement, thereby preserving its contribution 

claim. The circuit court, recognizing this as an issue of first impression, nevertheless 

found Jennings analogous and concluded that the contribution claim was extinguished as 

a matter of law due to the good faith settlement reached with Mr. Smith. Finally, 

Modular argued that it was improper for the circuit court to include Mr. Smith on the 

verdict form for purposes of apportionment of fault since he was not a party to the 

litigation, as required under West Virginia Code § 55-7-24. The circuit court concluded 

that because Mr. Smith testified, the jury had the necessary evidence to apportion fault to 

him and that, even if erroneous, it was harmless error. As a result of the foregoing, the 

circuit court denied Modular’s motion and this appeal followed. 

II. STANDARD OF REVIEW 

This case presents itself upon the circuit court’s denial of Modular’s motion 

for judgment as a matter of law, or, in the alternative for a new trial. With respect to 

Modular’s motion for judgment as a matter of law, this Court has held: 

The appellate standard of review for an order granting or 

denying a renewed motion for a judgment as a matter of law 

after trial pursuant to Rule 50(b) of the West Virginia Rules of 

Civil Procedure [1998] is de novo. 

When this Court reviews a trial court’s order granting or 

denying a renewed motion for judgment as a matter of law 

after trial under Rule 50(b) of the West Virginia Rules of Civil 

Procedure [1998], it is not the task of this Court to review the 

facts to determine how it would have ruled on the evidence 

presented. Instead, its task is to determine whether the 

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evidence was such that a reasonable trier of fact might have 

reached the decision below. Thus, when considering a ruling 

on a renewed motion for judgment as a matter of law after 

trial, the evidence must be viewed in the light most favorable 

to the nonmoving party. 

Syl Pts. 1 and 2, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). As pertains to 

this Court’s review of the sufficiency of the evidence, 

the court should: (1) consider the evidence most favorable to 

the prevailing party; (2) assume that all conflicts in the 

evidence were resolved by the jury in favor of the prevailing 

party; (3) assume as proved all facts which the prevailing 

party's evidence tends to prove; and (4) give to the prevailing 

party the benefit of all favorable inferences which reasonably 

may be drawn from the facts proved. 

Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983). 

Insofar as Modular’s motion for a new trial is concerned, this Court reviews 

“the rulings of the circuit court concerning a new trial and its conclusion as to the 

existence of reversible error under an abuse of discretion standard, and we review the 

circuit court's underlying factual findings under a clearly erroneous standard. Questions 

of law are subject to a de novo review.” Tennant v. Marion Health Care Foundation, 

Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). “Although the ruling of a trial 

court in granting or denying a motion for a new trial is entitled to great respect and 

weight, the trial court's ruling will be reversed on appeal when it is clear that the trial 

court has acted under some misapprehension of the law or the evidence.” Syl. Pt. 4, 

Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). With these 

standards in mind, we proceed to Modular’s assignments of error. 

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III. DISCUSSION
 

A. Inconsistency of Verdict 

Modular’s first assignment of error asserts that the jury’s finding that 

Poerio was negligent, but did not breach the lease agreement is inconsistent. Modular 

argues that the only evidence of negligence against Poerio adduced at trial was that it 

failed to provide free and clear access to the storage container, which would be a breach 

of the lease. Modular argues that if the jury found that Poerio was negligent, it 

necessarily must have also violated the lease agreement. Poerio denies that the access 

issue was the only accusation leveled at trial, and maintains that Modular tried to “paint it 

in a bad light” claiming that Poerio did not offer specific directions for access to the 

storage unit or provide flaggers to assist Mr. McLaughlin. 

This Court has held that “[w]hen jury verdicts answering several questions 

have no logical internal consistency and do not comport with instructions, they will be 

reversed and the cause remanded for a new trial.” Syl. Pt. 1, Reynolds v. Pardee & 

Curtin Lumber Co., 172 W. Va. 804, 310 S.E.2d 870 (1983). In determining whether 

jury verdicts are inconsistent, the Court has observed that with respect to inconsistent 

verdict, “such inconsistency must appear after excluding every reasonable conclusion that 

would authorize the verdict.” Prager v. City of Wheeling, 91 W. Va. 597, 599, 114 S.E. 

155, 156 (1922). 

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We find this assignment of error easily resolved. Critically, there was 

conflicting testimony as to whether the main entrance to the school was blocked or not. 

The jury could have concluded that it was not blocked, thereby providing free and clear 

access to the storage unit, irrespective of the obstructions to the construction entrance Mr. 

McLaughlin chose to utilize. Therefore, the lease agreement would not have been 

breached by Poerio. However, in spite of this finding, the jury could have likewise been 

persuaded by Modular’s insinuation throughout the testimony of various witnesses that 

Poerio improperly failed to advise Modular of the location and proper means of access 

for the storage container when Modular called prior to pick-up to ensure the storage 

container was empty. The jury could have also been persuaded by Modular’s suggestion 

that Poerio employees should have assisted in flagging for Mr. McLaughlin when he 

stopped the Modular truck partially in the roadway. Moreover, there was much 

discussion about the location to which Poerio moved the storage unit, which location, 

along with the white work van caused the obstruction of the construction entrance where 

Mr. McLaughlin attempted to enter. Accordingly, the jury could have concluded that 

there existed a free and clear access to the storage unit but that, in spite of that access, 

Modular utilized the other entrance which Poerio negligently allowed to become blocked 

and/or failed to warn or assist him in that regard.4 

4

Although not argued by Poerio, as additional grounds for finding against Modular 

on this assignment of error, we note that counsel for Modular made no objection to the 

(continued . . .) 

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We therefore find that there are a variety of “reasonable conclusions” which 

would authorize the verdict and that the circuit did not err in refusing to grant a new trial 

on this basis. 

B. Extinguishment of Contribution Claim 

Modular’s next assignment of error presents an issue of first impression. 

Modular argues that the circuit court erred in concluding that its settlement with Mr. 

Smith served to extinguish Modular’s contribution claim against Poerio where Modular 

obtained a release for Poerio in such settlement.5 

inconsistent verdict at the time the verdict was returned and before the jury was 

discharged. After the circuit court read the verdict, it inquired of counsel: 

The Court: Does either party wish to address any motions with regard to 

any irregularities with regard to the form? 

Mr. Kesner: No, Your Honor. 

The Court has held that “[a]bsent extenuating circumstances, the failure to timely 

object to a defect or irregularity in the verdict form when the jury returns the verdict and 

prior to the jury’s discharge, constitutes a waiver of the defect or irregularity in the 

verdict form.” Syl. Pt. 2, Combs v. Hahn, 205 W. Va. 102, 516 S.E.2d 506 (1999). 

Moreover, “[t]he right [to clarification of an irregular verdict] after waiver cannot be 

reclaimed and revived by a motion for a new trial.” Id. at 107, 516 S.E.2d at 511. 

5 As noted above, the circuit court initially ruled in Modular’s favor pre-trial in 

allowing the contribution claim to be presented to the jury. Post-judgment and 

particularly during post-trial motions, however, the circuit court ostensibly revisited the 

propriety of the claim and reversed course, finding the contribution claim extinguished as 

a matter of law. See n. 3, supra. 

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“Once comparative fault in regard to contribution is recognized, recovery 

can be had by one joint tortfeasor against another joint tortfeasor inter se regardless of 

their respective degree of fault so long as the one has paid more than his pro tanto share 

to the plaintiff.” Syl. Pt. 4, Sitzes v. Anchor Motor Freight, Inc., 169 W. Va. 698, 289 

S.E.2d 679 (1982). It is well-established that a settlement with a plaintiff by a joint 

tortfeasor extinguishes any claim for contribution against that settling tortfeasor. In 

Syllabus Point 6 of Bd of Educ. of McDowell Cnty. v. Zando, Martin & Milstead, Inc., 

182 W. Va. 597, 390 S.E.2d 796 (1990), the Court held that “[a] party in a civil action 

who has made a good faith settlement with the plaintiff prior to a judicial determination 

of liability is relieved from any liability for contribution.” Moreover, the Court has 

historically found the opposite to also be true, i.e. the settling tortfeasor cannot pursue 

contribution against a non-settling tortfeasor. See Charleston Area Med. Ctr., Inc. v. 

Parke-Davis, 217 W. Va. 15, 614 S.E.2d 15 (2005) (refusing to allow settling tortfeasor 

to pursue contribution for pre-suit settlement with plaintiff); Jennings, 224 W. Va. 636, 

687 S.E.2d 574 (refusing to allow settling tortfeasor to pursue contribution after 

settlement with tortfeasor purporting to represent tortious acts of joint tortfeasor). 

However, critically, in each of these cases, the settling tortfeasor’s settlement with 

plaintiff released only the settling tortfeasor. See Parke-Davis, 217 W. Va. at 23, n.11, 

614 S.E.2d at 23, n.11 (observing that “CAMC was the only party released from 

liability”); Jennings, 224 W. Va. at 639, 687 S.E.2d at 577 (“Ms. Jennings settled and 

released all her claims against Farmers Mutual [.]”). 

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The question then is whether the fact that Modular obtained a release for 

Poerio—a party Mr. Smith did not sue and against which Mr. Smith’s statute of 

limitations had run at the time of trial—preserves Modular’s claim for contribution 

against Poerio. Although this issue has not been squarely addressed by this Court, the 

Parke-Davis Court obliquely noted that, as in West Virginia, states which have adopted 

the Uniform Contribution Among Tortfeasors Act (“UCATA”) typically find that a 

settlement by a joint tortfeasor terminates its right of contribution, “barring a release 

obtained by the settling tortfeasor that expressly extinguishes any liability against all 

tortfeasors.” 217 W. Va. at 23, n.11, 614 S.E.2d at 23, n.11 (emphasis added); see also 

Mackey v. Irisari, 191 W. Va. 355, 361 n.4, 445 S.E.2d 742, 748 n.4 (1994) (recognizing 

rule in UCATA states that where settling defendant settles only his share, contribution 

does not lie, but contribution may be had from defendant whose liability was 

extinguished by joint tortfeasor’s settlement). 

Urging the Court to adopt this rule, Modular argues that if it were not 

permitted to preserve its claim for contribution by obtaining a release for Poerio, in a case 

where it felt strongly that Poerio was the primary wrongdoer, it would have no incentive 

to settle with the badly injured plaintiff. The only way then to preserve its contribution 

claim would be to refuse to settle with plaintiff and proceed to trial. Modular insists that 

such a result would run contrary to our strong public policy favoring out-of-court 

resolution of disputes: “The law favors and encourages the resolution of controversies by 

contracts of compromise and settlement rather than by litigation[.]” Syl. Pt. 1, in part, 

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Sanders v. Roselawn Mem’l Gardens, 152 W. Va. 91 159 S.E.2d 784 (1968); see also 

Zando, 182 W. Va. at 604, 390 S.E.2d at 803 (same). 

Poerio, on the other hand, contends that Modular’s unilateral action of 

settling with Mr. Smith and obtaining a release on Poerio’s behalf, all without its 

involvement, should not make it a hostage to Modular’s settlement. Poerio claims that 

Modular “willingly and voluntarily” “bought protection from a potentially large 

verdict[.]” Poerio argues heavily that the Jennings case cited by the circuit court is 

controlling and, without specifically citing to such authority, appears to argue that absent 

a “forcible” common obligation by judgment, no right of contribution lies. See Syl. Pt. 4, 

in part, Sydenstricker v. Unipunch Products, Inc., 169 W. Va. 440, 288 S.E.2d 511 (1982) 

(“The right to contribution arises when persons having a common obligation, either in 

contract or tort, are sued on that obligation and one party is forced to pay more than his 

pro tanto share of the obligation.”); see also Parke-Davis, 217 W. Va. at 23, 614 S.E.2d 

at 23 (“Given that CAMC acted of its own salutary accord in deciding to settle the claims 

raised by the child’s estate, it cannot claim to have be ‘forced to pay more than [its] pro 

tanto share.’”).6 

6 Poerio also argues that if Modular wanted to cap its liability while preserving its 

contribution claim, it could have entered a “Mary Carter” agreement with plaintiff. A 

“Mary Carter” agreement is one where plaintiff enters a settlement with a defendant who 

guarantees the plaintiff a certain recovery regardless of outcome. This type of agreement 

tends to “realign the loyalties of the parties and change their trial tactics” and is not 

particularly favored. Reager v. Anderson, 179 W. Va. 691, 702, 371 S.E.2d 619, 630 

(continued . . .) 

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To examine this question further, the rationale behind the extinguishment 

of contribution claims upon settlement must be examined. The underlying reasoning 

behind the preclusion of a contribution claim by a settling tortfeasor against a nonsettling tortfeasor is that the non-settling tortfeasor remains exposed to the plaintiff and 

therefore will theoretically pay his share of liability, if any, directly to the plaintiff. 

Similarly, “[t]he settling defendant is, in effect, paying a share of liability on the verdict.” 

Zando, 182 W. Va. at 605, 390 S.E.2d at 804. To allow the settling tortfeasor to pursue 

contribution while the non-settling tortfeasor remains exposed to the plaintiff would 

result in the non-settling tortfeasor being doubly exposed for his negligence. See Estate 

of Dresser v. Maine Med. Ctr., 960 A.2d 1205, 1209 (Me. 2008) (Mead, J., dissenting) 

(“The necessity of extinguishing liability of non-settling tortfeasors is clear: failure to do 

so could expose a non-settling tortfeasor to liability on both the underlying claim and the 

contribution claim.”) However, where a joint tortfeasor purchases or otherwise obtains a 

release for the non-settling tortfeasor, the non-settling tortfeasor is obviously no longer 

(1988) see also Mackey, 191 W. Va. at 363, 445 S.E.2d at 750 (1994) (“This case points 

out the problems with a ‘Mary Carter” settlement agreement.’”). 

Regardless, however, of the availability and/or relative merits of a Mary Carter 

agreement, the fact of the matter is that such an agreement was not reached in this case. 

Therefore, its potential availability is irrelevant to the issues presented. More to the 

point, however, Modular had little chance of getting Smith to make a Mary Carter 

agreement in this case because that would require Smith to proceed to trial for the sole 

purpose of making a case against Poerio—a party it did not even feel necessary to sue. 

Smith would have no incentive whatsoever to agree to remain in the case only to help 

Modular pursue its contribution claim. 

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exposed to plaintiff. 7 In this case, Modular made the strategic decision to settle with a 

badly injured plaintiff, Mr. Smith, to remove that potentially inflammatory aspect of the 

case from the jury in an effort to control damages. Mr. Smith voluntarily gave a release 

for both Modular and Poerio for the settlement, thereby extinguishing Poerio’s potential 

exposure to Mr. Smith. This critical distinction makes Jennings and our other caselaw 

involving only a release of the settling tortfeasor of little utility.8 

7 The fact that Smith did not sue Poerio directly and the statute of limitations had 

run as against Poerio has been found by an “overwhelming majority” of other courts to be 

of no moment to this analysis. Smith v. Jackson, 721 P.2d 508, 510 (Wash. 1986). The 

rationale is typically that the contribution plaintiff should not be hamstrung by the 

underlying plaintiff’s lack of diligence: “[P]laintiff’s claim should not be compromised 

merely because the underlying claimant failed to comply with a statute of limitations as 

to the contribution defendant.” MetroHealth Med. Ctr. v. Hoffmann-LaRoche, Inc., 685 

N.E.2d 529, 533 (Ohio 1997). The MetroHealth court further concluded that the 

statutory requirement that a contribution defendant be “‘liable in tort’ means no more 

than that the contribution defendant acted tortiously and thereby caused damages.’” Id. at 

532. See also Martin v. CSX Transportation, Inc., 617 F. Supp.2d 662, 667 (N.D. Ohio 

2009) (finding that “the expiration of the limitations period on the underlying tort claim 

does not serve to extinguish liability in a subsequent contribution action.”); Doyle v. 

Rhodes, 461 N.E.2d 382, 388 (Ill. 1984) (finding that whether a party is “subject to 

liability” to the plaintiff for purposes of contribution is determined at the time of the 

injury, not when the matter proceeds to trial); G & P Trucking v. Parks Auto Sales Serv. 

& Salvage, 591 S.E.2d 42, 45 (S.C. 2003) (finding that “the running of the statute of 

limitations in and of itself cannot operate to ‘extinguish’ a tortfeasor’s liability” because 

“it is subject to certain counter-assertions, such as waiver, tolling, and estoppel.”); cf. 

Zando, 182 W. Va. at 603, 390 S.E.2d at 802 (“The touchstone of the right of inchoate 

contribution is this inquiry: Did the party against whom contribution is sought breach a 

duty to the plaintiff which caused or contributed to the plaintiff’s damages?”) 

8 Moreover, none of the disqualifying factors for the contribution claim in ParkeDavis are present here. The Parke-Davis Court was critical of the absence of an original 

complaint by the injured plaintiff and proper joinder of all parties in a unitary action. The 

case sub judice proceeded exactly as contemplated for the bringing of a contribution 

(continued . . .) 

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The UCATA adopted in many states expressly provides: “A tortfeasor who 

enters into a settlement with a claimant is not entitled to recover contribution from 

another tortfeasor whose liability for the injury or wrongful death is not extinguished by 

the settlement[.]” § 1(d) (emphasis added). The comments to the Act further explain that 

The policy of the Act is to encourage rather than discourage 

settlements. The tortfeasor who settles removes himself 

entirely from the case so far as contribution is concerned if he 

is able and chooses to buy his peace for less than the entire 

liability. If he discharges the entire obligation it is only fair to 

give him contribution from those whose liability he has 

discharged. 

(emphasis added); see also 18 Am. Jur.2d Contribution § 70 (1985) (“A joint tortfeasor, 

who enters into a settlement of the common liability with an injured person, is entitled to 

recover contribution from another tortfeasor, whose liability to the injured person was 

extinguished by that settlement” barring a statute providing otherwise); Restatement 

(Third) of Torts: Apportionment of Liability § 23 (“When two or more persons are or 

may be liable for the same harm and one of them discharges the liability of another by 

settlement or discharge of judgment, the person discharging the liability is entitled to 

recover contribution from the other[.]”) Although frequently governed by statute, the 

claim: “The procedural mechanism for invoking [a] non-statutory right of contribution . . 

. is by means of third-party joinder . . . . [W]hether the inchoate right of contribution can 

be asserted in a given case will generally be determined based upon compliance with the 

procedural requirements necessary to invoke such right.” Parke-Davis, 217 W. Va. at 20, 

614 S.E.2d at 20. The only procedural irregularity was created by the subsequent 

settlement of Mr. Smith. 

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overwhelming majority of states likewise permit contribution claims where one tortfeasor 

extinguishes the liability of another joint tortfeasor. 9 

Certainly, this Court is no stranger to the policy underlying this rule and has 

in fact stated “[i]t would seem proper social policy that a wrongdoer should not escape 

9 See In re Rural/Metro Corp. Stockholders Litig., 102 A.3d 205, 223 (Del. Ch. 

2014) (recognizing ability of “one or more joint tortfeasors to settle on behalf of 

themselves and another joint tortfeasor and then pursue that joint tortfeasor for its share 

of the settlement payment”) Robarts v. Diaco, 581 So.2d 911, 915 (Fl. Dist. Ct. App. 

1991) (“for such a right of contribution to exist, a nonsettling joint tortfeasor must also 

have been released from all liability to the injured party for the tort.”); Gump v. Wal-Mart 

Stores, Inc., 5 P.3d 407 (Haw. 2000) (recognizing necessity of release of joint tortfeasor 

against whom contribution is sought); Brockman Mobile Home Sales v. Lee, 567 P.2d 

1281, 1283 (Idaho 1977) (“A joint tortfeasor who enters into a settlement with the injured 

person is entitled to recover contribution from another joint tortfeasor whose liability to 

the injured person is extinguished by the settlement.”); State Farm Fire and Cas. Co. v. 

Jones, 768 N.E.2d 805, 806 (Ill. App. Ct. 2002) (“[A] joint tortfeasor who wishes to settle 

with a claimant and intends to seek contribution from another tortfeasor must secure the 

other tortfeasor's release in order to preserve its right to contribution.”); Union Elec. Co. 

v. Metropolitan St. Louis Sewer Dist., 258 S.W.3d 48, 55 (Mo. 2008) (“[W]hen the party 

seeking contribution has settled with the original plaintiff, the settling party has a right of 

contribution “‘only . . . if the liability of the person against whom contribution is sought 

has been extinguished[.]”); Estate of Powell ex rel. Powell v. Montange, 765 N.W.2d 

496, 504 (Neb. 2009) (“[A] right of contribution among joint tort-feasors is not 

established if the tort-feasor seeking contribution extinguishes only his or her liability and 

does not extinguish the liability of the other joint tort-feasors from whom contribution is 

sought.”); The Doctors Co. v. Vincent, 98 P.3d 681, 683 (Nev. 2004) (“[A] joint 

tortfeasor seeking to perfect a contribution claim in the context of a settlement must first 

extinguish the liabilities of the other joint tortfeasors against whom contribution recovery 

is sought.”); Husni v. Meden, 640 N.E.2d 1207 (Ohio Ct. App. 1994) (barring 

contribution claim where release did not extinguish joint tortfeasor’s liability); Schuman 

v. Vitale, 602 A.2d 390 (Pa. 1992) (same); G & P Trucking v. Parks Auto Sales Service & 

Salvage, Inc., 591 S.E.2d 42 (S.C. Ct. App. 2003) (same); Kirk v. Moe, 789 P.2d 84 

(Wash. 1990) (recognizing right of contribution against joint tortfeasor where release is 

obtained on his behalf). 

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his liability on the fortuitous event that another paid the entire joint judgment.” Sitzes, 

169 W. Va. at 708, 289 S.E.2d at 686. Moreover, we agree with the Supreme Court of 

Nebraska’s statement that 

[u]nder equitable principles, the discharge of such liability is 

a benefit to the tort-feasor from whom contribution is sought. 

However, without such discharge, the other tort-feasor may 

remain liable to the injured party and the tort-feasor seeking 

contribution will not have fixed the amount of liability for 

which contribution is sought. 

Estate of Powell, 765 N.W.2d at 504. The Colorado Court of Appeals likewise found 

that “to prohibit the [settling tortfeasor who obtains a release for a joint tortfeasor] from 

getting contribution would make for an inequitable distribution of the loss, and would 

result in the [non-settling, released tortfeasor] being unjustly enriched through the 

[settling tortfeasor’s] complete payment of a joint obligation.” Miller v. Jarrell, 684 P.2d 

954, 957 (Colo. Ct. App. 1984). However, “[a] settlement by one tort-feasor that does 

not extinguish the common liability does not confer a benefit upon which a claim for 

contribution may be asserted.” Estate of Powell, 765 N.W.2d at 504.10 Finally, as 

Modular correctly notes, were this Court not to adopt this rule, it would discourage 

similarly situated defendants from settling with injured plaintiffs and sparing them the 

burdens of trial; to preserve their contribution claim, they would have to refuse to settle 

10 In fact, this concept was articulated in Parke-Davis: “[W]hile CAMC sought to 

establish a legal obligation jointly owed by it and Defendants through the underlying 

cause of action, the predicate common obligation owed to the injured party was not 

established through that proceeding.” 217 W. Va. 23, 614 S.E.2d at 23. In the case sub 

judice, the common obligation was created by virtue of the settlement and release on 

behalf of both Modular and Poerio. 

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and proceed to trial with the plaintiff in tow all for the purpose of compelling a joint 

tortfeasor to pay its share. 

We therefore hold that where a tortfeasor settles with an injured plaintiff 

and obtains a release for a joint tortfeasor, such release preserves the settling tortfeasor’s 

right of contribution against the released joint tortfeasor. Accordingly, we find that the 

circuit court erred when it concluded that Modular’s claim of contribution was 

extinguished as a matter of law by Modular’s settlement with Mr. Smith. 

C. Apportionment of Fault to the Injured Plaintiff, Mr. Smith 

Having determined that the contribution claim was not extinguished by 

Modular’s settlement with Mr. Smith, Modular’s final assignment of error asserts that the 

circuit court erred in permitting Mr. Smith to be placed on the verdict form for purposes 

of apportionment of fault. Modular argues that this Court has held that “empty chair” 

arguments are impermissible and that West Virginia Code § 55-7-24, only permits the 

jury to determine proportionate fault of “each of the parties in the litigation at the time the 

verdict is rendered[.]” Since Mr. Smith had settled and was not a party at the time of 

trial, Modular argues that his comparative fault should not have been assessed. 

Poerio, on the other hand, argues that West Virginia Code § 55-7-24 merely 

governs joint and several liability and is therefore inapplicable as this was simply a 

contribution claim, i.e., there was no joint and several liability to be rendered since Mr. 

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Smith had settled. Poerio further argues that Mr. Smith was called as a witness by 

Modular and his involvement in the accident was fully presented through his testimony 

and the testimony of a Poerio employee, who saw Mr. Smith looking at the job site just 

before the accident.11 

Contrary to what the parties appear to believe, there is no per se ban on 

“empty chair” arguments in West Virginia. This notion first appeared in Groves v. 

Compton, 167 W. Va. 873, 879, 280 S.E.2d 708, 712 (1981), wherein the Court noted in 

dicta that “it is improper for counsel to argue to the jury . . . that an absent party is solely 

responsible for the accident since the evidence surrounding such absent party’s liability 

has not been fully developed.” (emphasis added). However, in the following term of 

Court, we held that “[i]n order to obtain a proper assessment of the total amount of the 

plaintiff’s contributory negligence under our comparative negligence rule, it must be 

ascertained in relation to all of the parties whose negligence contributed to the accident, 

and not merely those defendants involved in the litigation.” Syl. Pt. 3, Bowman v. 

Barnes, 168 W. Va. 111, 282 S.E.2d 613 (1981). 

The spectre of the “empty chair” ban was raised again in 2001, when this 

Court reiterated the general impropriety of arguing the fault of absent parties, with a 

strong, but often overlooked, caveat. In Syllabus Point 2 of Doe v. Wal-Mart Stores, Inc., 

11 Mr. Smith suffered a head injury and therefore had no memory of the subject 

accident. He put up little resistance during his testimony to the idea that he was 

distracted at the time of the collision. 

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210 W. Va. 664, 558 S.E.2d 663 (2001), the Court held that “[i]t is improper for counsel 

to make arguments to the jury regarding party’s omission from a lawsuit or suggesting 

that the absent party is solely responsible for the plaintiff’s injury where the evidence 

establishing the absent party’s liability has not been fully developed.” (emphasis added). 

There has been little discussion of what level of evidentiary development is necessary to 

invoke this exception. 

However, this Court subsequently suggested that where issues of plaintiff’s 

comparative negligence and joint tortfeasors converge, the jury should assess the fault of 

all parties. In Rowe v. Sisters of the Pallottine Missionary Soc’y, 211 W. Va. 16, 560 

S.E.2d 491 (2001), the sole remaining defendant in a medical malpractice trial asserted 

that it was error for the trial court to refuse to allow plaintiff and a settling defendant to 

be placed on the verdict form for apportionment of fault. The Rowe Court first noted that 

Bowman only requires assessment of the fault of all parties where plaintiff is alleged to 

be contributorily negligent; however, the Court found that there was no viable 

contributory negligence claim in Rowe: “[W]ithout some proof of negligence by the 

plaintiff, there is no requirement that the jury be instructed to ascertain or apportion fault 

between the defendant and a non-party tortfeasor.” Id. at 24, 560 S.E.2d at 499 

(emphasis added). With respect to the non-party tortfeasor, the Court observed that there 

were no contribution claims, 211 W. Va. at 24 n.5, 560 S.E.2d at 499 n.5, and therefore 

any apportionment of fault was irrelevant. Id. at 25, 560 S.E.2d 500. By contrast, in the 

instant case, the plaintiff is the non-party and there is ample evidence of his comparative 

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negligence. Moreover, since Smith settled just prior to trial, there can be little question 

that “evidence establishing the absent party’s liability has [] been fully developed” in the 

litigation and presented at trial as required by Doe. 

In addition to caselaw supporting the placement of Mr. Smith on the verdict 

form for the apportionment of fault, simple fairness would seem to require it under these 

circumstances. Poerio refused to settle this matter as it was of the opinion that Mr. Smith 

was fifty percent or greater at fault, which would bar his recovery. Modular, preferring 

not to take such a risk in front of a jury, settled with Mr. Smith and obtained a release for 

Poerio—acts over which Poerio had no control. If Poerio were not permitted to have the 

jury assess Mr. Smith’s fault, it creates a false presumption that Mr. Smith had a viable, 

collectible claim and was entitled to recover against one or both defendants. This fiction 

necessarily connotes that one or both defendants were more than fifty percent at fault and 

the jury must simply decide how much each defendant should pay. It is patently 

inequitable to hamstring Poerio with the settlement and release obtained by Modular, yet 

strip it of its ability to advance its primary defense to the case—the recovery-barring fault 

of Mr. Smith. When Modular paid to obtain a release for both itself and Poerio, it ran the 

risk that a jury would agree that Mr. Smith was not entitled to recover because his 

negligence totaled fifty percent or greater. 

Similarly motivated by a balancing of the equities, this Court has recently 

endorsed the placement of an immune defendant on the verdict form as required by 

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“equitable principles of fairness, the concepts underlying the doctrine of comparative 

negligence, and this Court’s ruling in Bowman[.]” Landis v. Hearthmark, LLC, 232 W. 

Va. 64, 75, 750 S.E.2d 280, 291 (2013). In Landis, this Court held that in a product 

liability action, an allegedly negligent parent could be included as a third-party defendant 

even though the parental immunity doctrine bars a claim of contribution against the 

parent. The court noted that Bowman’s admonition that all parties’ fault must be assessed 

was not limited to parties against whom there was a claim of contribution. Id. at 74, 750 

S.E.2d at 290. 

Finally, as to Modular’s argument that West Virginia Code § 55-7-24 

governs this scenario, we disagree. West Virginia Code § 55-7-24 is entitled 

“Apportionment of damages” and, simply put, deals with joint and several liability of 

defendants (emphasis added). As we observed in Sitzes, “the concept of joint and several 

liability after judgment relates primarily to the liability of all of the joint tortfeasors to the 

plaintiff.” 169 W.Va. at 706, 289 S.E.2d at 685 (emphasis added). “The basic purpose of 

the joint and several liability rule is to permit the injured plaintiff to select and collect the 

full amount of his damages against one or more joint tortfeasors.” Id. at 707; 289 S.E.2d 

at 685 (emphasis added). Accordingly, the practical effect of West Virginia Code § 55-7­

24 concerns the collectability of a judgment by a plaintiff. 

Modular argues that the requirement to determine “proportionate fault of 

each of the parties in the litigation at the time the verdict is rendered” contained in West 

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Virginia Code § 55-7-24 is evidence that consideration of the fault of non-parties is per 

se impermissible in West Virginia. However, this mere reference in our joint and several 

liability statute does not evince a Legislative intent that West Virginia Code § 55-7-24 

serve as an omnibus statute exclusively governing the apportionment of comparative fault 

and the consideration of fault of nonparties.12 Both of these concepts are a creation of 

and governed by the common law. See Bradley v. Appalachian Power Co., 163 W.Va. 

332, 256 S.E.2d 879 (1979) (creating West Virginia’s modified comparative fault 

standard); Bowman, 168 W. Va. 111, 282 S.E.2d 613 (determining absent party’s role in 

comparative negligence). “‘The common law is not to be construed as altered or changed 

by statute, unless legislative intent to do so be plainly manifested.’ Shifflette v. Lilly, 130 

W.Va. 297, [43 S.E.2d 289 1947].” Syl. Pt. 4, Seagraves v. Legg, 147 W.Va. 331, 127 

S.E.2d 605 (1962). “If the Legislature intends to alter or supersede the common law, it 

must do so clearly and without equivocation.” State ex rel. Van Nguyen v. Berger, 199 

W.Va. 71, 75, 483 S.E.2d 71, 75 (1996). With its 2005 enactment, West Virginia Code § 

55-7-24 simply does not, nor does it purport to, alter our common law regarding the 

assessment of fault against non-parties which pre-existed the statute for twenty-four 

years. See also Landis, 232 W. Va. at 74, 750 S.E.2d at 290 (finding that West Virginia 

Code § 55-7-24 does not preclude consideration of immune defendant’s fault). 

12 In contrast, H. B. 2002, which becomes effective on May 25, 2015, repeals both 

West Virginia Code §§ 55-7-24 and 55-7-13 and enacts a series of new statutes which in 

fact do purport to fully occupy the field of comparative fault and the consideration of “the 

fault of parties and nonparties to a civil action[.]” H. B. 2002, 2015 Leg. 82nd Sess. (W. 

Va. 2015) (to be codified at West Virginia Code §§ 55-8-13a through 13d). 

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In more practical terms, it is clear that the use of the particular language in 

West Virginia Code § 55-7-24 is simply necessary to properly effectuate the calculations 

and apportionments governed by the statute. In order to properly calculate a plaintiff’s 

damages and therefore the amounts owed by the respective tortfeasors, it is in fact 

necessary to first “determine . . . the total amount of damages sustained by the claimant” 

and then determine the “proportionate fault of each of the parties in the litigation at the 

time the verdict is rendered” to determine 1) the amount to which plaintiff is entitled; and 

2) which tortfeasors are severally or jointly and severally liable, such that plaintiff may 

determine from whom his verdict is collectible. With Mr. Smith having settled, 

apportionment of fault for purposes of the joint and several statute is pointless; Smith is 

not seeking to “recover” from the joint tortfeasors. 

We therefore find that the circuit court committed no error in permitting 

Mr. Smith to be placed on the verdict form for purpose of fault apportionment. Inasmuch 

as the jury returned a verdict of sixty percent negligence as to Mr. Smith, Poerio is 

entitled to judgment in its favor as to Modular’s contribution claim.13 

13 Modular also argues that because both it and Poerio were found to be twenty 

percent at fault and therefore in equal fault, Poerio must pay fifty percent of the 

settlement to Modular. This argument not only flies in the face of our conclusion that 

Mr. Smith’s negligence was properly assessed by the jury, but simply does not reflect a 

realistic representation of the jury’s conclusions. The jury did not conclude that Poerio 

bears fifty percent responsibility for damages to which Mr. Smith was entitled; rather, it 

found Poerio twenty percent at fault for a claim which is barred by operation of law due 

to Mr. Smith’s percentage of comparative negligence. 

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IV. CONCLUSION 

For the reasons set forth hereinabove, we affirm the December 12, 2013, 

order of the circuit court. 

Affirmed. 

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