Pub 2 2021 Issue 1

Issue 1 2021 23 WVADA reasonably resolve the case. Pressure is then placed on the plaintiff’s counsel since they may not be able to recover fees and costs past that date. It will make both sides evaluate their cases more reasonably and accurately. 4. Defense Counsel now has the opportunity to recover attorney fees. Perhaps the most significant addition of Senate Bill 5 was to allow for fee-shifting to occur in favor of an auto vehicle dealer. Specifically, if a judgment is obtained for less than 75% of a motor vehicle dealer’s offer of settlement, the defendant may petition the Court for reasonable fees and expenses incurred from the day of offer of settlement to the entry of judgment. The Court can award these reasonable fees and expenses if it finds the plaintiff acted without “substantial justification” or “without good faith” in rejecting the motor vehicle dealer’s offer. The language does not allow a consumer’s attorney to just rely upon some justification, but they must have substantial justification in order to prevent this award. Consequently, when a dealer has been reasonable and is able to prove that through the result at trial, they are now going to have the ability to seek recovery of the fees and costs incurred after the date of the offer of settlement. Consequently, it certainly makes strategic sense that dealers should evaluate their claims as soon as possible, and if a cure offer is not made, to make an offer of settlement as soon as the 30 days after the service of the Summons and Complaint. This time frame would be around your Answer due date. 5. This law does not apply to manufacturers and lemon law cases. These amendments and changes to West Virginia Code do not apply to the West Virginia lemon law statute, which is set forth at West Virginia Code §46A-6A-1 et seq. These limitations and new defense tools for the dealer are not available to the manufacturer. Consequently, there is more pressure upon manufacturers to resolve these lemon law claims, and perhaps more important, consumer attorneys will be encouraged to follow the lemon law statute and sue manufacturers only, without adding the dealer, the lender, the finance manager and the salesperson. Previously, the lemon law was clear and been interpreted by case law that it does not apply against the dealer but only against manufacturers. Unfortunately, dealers frequently get named in lemon law cases unnecessarily, along with lenders and other individuals. Hopefully, these changes will encourage these types of lawsuits to lessen against dealers, but only time will tell. It has been great to start off the first Counselor’s Corner of 2021 with such good news on behalf of the automobile dealer industry. As you move forward, I hope you find these new statutory tools useful in defending questionable and frivolous claims. Should you have any questions, the Association and I stand ready to answer and to assist in these matters. t