Construction Claim Rules in West Virginia

Statutory interest rate

2 points above the Fed 5th District secondary discount rate, capped 9% / floored 4% (pre- and post-judgment, simple)

Both prejudgment and postjudgment interest are set at 2 percentage points above the Fifth Federal Reserve District secondary discount rate in effect on January 2 of the relevant year, capped at 9% and floored at 4%. If the claim arises from a written contract, prejudgment interest instead follows the contract's own rate.

Compounding: Simple, not compounding; the statute expressly states judgments 'bear simple, not compounding, interest.'

Citation: W. Va. Code § 56-6-31

Source: https://code.wvlegislature.gov/56-6-31/

One secondary source (a law-firm multi-state chart) states an older formula (3 points above the discount rate, capped 11%/floored 7%) that appears to reflect a pre-2018 version of the statute. The current official West Virginia Legislature code text (2 points, 9% cap, 4% floor) controls; the older figures are noted here only in case an older claim date needs the historical rate.

Accrual: breach of contract claim

From January 2 of the year the right to bring the action accrued, not the breach date itself

West Virginia's prejudgment-interest statute covers special or liquidated damages, including construction-contract debts, fixing an unusual accrual point: interest runs from January 2 of the calendar year in which the right to bring the action accrued, remaining at that rate through judgment. Where the claim arises from a written agreement, the contract's own interest rate and terms control instead.

Citation: W. Va. Code § 56-6-31

Source: https://code.wvlegislature.gov/56-6-31/

This January 2 rule is easy to miscalculate as 'date of breach'; the actual statutory start date is fixed to the following January 2 of the accrual year, not the specific calendar day the breach happened.

Accrual: property damage / tort claim

Same January 2 rule applies: damage to tangible property is expressly 'special damages' under the statute

The same statute expressly defines 'special damages' to include damage to tangible personal property, alongside lost wages and out-of-pocket expenses, applying the identical January 2-of-the-accrual-year accrual rule to those claims as to liquidated contract damages. General (non-special, non-liquidated) damages don't receive prejudgment interest under this statute at all.

Citation: W. Va. Code § 56-6-31

Source: https://code.wvlegislature.gov/56-6-31/

Actual Cash Value rule

Not established: conflicting, unresolved authority (a second research pass narrowed but did not resolve this)

West Virginia has no single, current, on-point controlling case. An older (1942) state Supreme Court case limited recovery to salvage value in a narrow fact pattern (a school building already slated for demolition and vacated when it burned); one industry source characterizes this as a departure from the broad evidence rule, while another broader industry survey groups West Virginia among states that likely follow the broad evidence rule based on its use of the 1943 Standard Fire Policy form. A third source (a consumer-facing state Insurance Commissioner description) uses language closer to replacement-cost-minus-depreciation. A fourth source states plainly that West Virginia has no decision on ACV methodology at all. A second, more rigorous research pass re-examined the 1942 case's actual reasoning and found it narrower than the 'departure from broad evidence' framing suggests: the court restricted recovery to salvage value specifically because the building was already slated for demolition (admitting evidence of that planned demolition, the court reasoned, would create speculative inquiries); it is not a holding that West Virginia limits ACV generally to salvage value, just the only West Virginia Supreme Court of Appeals precedent that touches ACV concepts at all. No modern (post-1990) West Virginia case was found to replace it and the formal Insurance Commissioner regulation on claims-settlement practices (114 CSR 14) was confirmed to contain no ACV valuation formula, so the Commissioner's consumer-facing 'replacement cost minus depreciation' language isn't backed by binding regulation either.

Citation: Board of Education of the County of Hancock v. Hartford Fire Ins. Co., 19 S.E.2d 448 (W. Va. 1942) (narrow, fact-specific; the closest thing to primary authority, but old and not a general ACV rule)

Source: https://law.justia.com/cases/west-virginia/supreme-court/1942/124-w-va-163.html

A specialty legal-industry survey (Carr Maloney LLP) independently states 'West Virginia remains undecided' on the broad evidence rule, corroborating the fourth characterization above. Four different secondary characterizations were found and none agree; per the standing policy, all are disclosed rather than picking one. Recommend treating West Virginia's ACV rule as unsettled pending legal review, not as a specific named methodology. The link above was upgraded in a follow-up pass to the free, full opinion text on Justia (case name: 'Board of Education of Hancock County v. Hartford Fire Insurance Co.,' 124 W. Va. 163); it previously pointed to a law firm's summary article.

ACV statute or regulation

No West Virginia insurance-code statute or adopted regulation was found that statutorily defines ACV calculation or restricts depreciating labor for property claims.

West Virginia's Unfair Trade Practices Act (W. Va. Code Section 33-11-4) and its claims-settlement regulation (114 CSR 14, Standards for Prompt, Fair and Equitable Settlements) were checked directly. 114 CSR 14 addresses betterment and depreciation limits for total-loss motor vehicle claims, limiting deductions to the proportion of a part's expired useful life, but contains no analogous provision for property or dwelling claims and does not define ACV or address labor depreciation for property losses. W. Va. Code Section 33-6-14 was also checked and concerns choice-of-law and suit-limitation policy provisions, not ACV or depreciation. West Virginia's ACV rule for property claims currently rests on common-law case law, Board of Education of Hancock County v. Hartford Fire Insurance Co., 19 S.E.2d 448 (W. Va. 1942), which is the common-law layer already covered elsewhere and not a statutory ACV or labor-depreciation rule.

Citation: W. Va. Code Section 33-11-4; 114 CSR 14

Source: https://www.wvinsurance.gov/LinkClick.aspx?fileticket=HeCI8XRvGoM%3D&tabid=329&portalid=0&mid=886

RESEARCHED and confirmed real via the actual regulation text. W. Va. Code Section33-11-4 is West Virginia's Unfair Trade Practices Act (general claims-handling standards); 114 CSR 14 is the implementing Unfair Claims Settlement Practices regulation, which specifically authorizes insurers to charge depreciation when adjusting vehicle total-loss claims -- confirmed directly from the regulation's text (Section7, partial/total loss provisions).

Recoverable depreciation holdback

No West Virginia statute or regulation specifically governing property-loss recoverable-depreciation holdback timing, or labor depreciation, was found. A related regulation exists for automobile claims specifically, requiring itemized depreciation calculations.

W. Va. Code R. Section114-14-7 (auto claims) requires that betterment/depreciation deductions be permitted only for parts normally subject to repair and replacement, limited to the proportion of the part's expired useful life, and itemized with calculations in the claim file -- but this regulation governs automobile total-loss and partial-loss claims specifically, not general property/homeowners recoverable-depreciation holdback timing. No provision addressing the property-loss holdback-release question was found.

Citation: W. Va. Code R. Section114-14-7 (automobile claims context; not directly applicable to property holdback timing).

Source: https://www.law.cornell.edu/regulations/west-virginia/W-Va-C-S-R-SS-114-14-7

RESEARCHED from scratch (prior entry was blank). No property-specific holdback-timing statute found; the confirmed regulation applies to auto claims, included here only as a related but non-dispositive West Virginia authority on depreciation itemization generally.

“No damages for delay” clause enforceability

No West Virginia state or federal court has considered the validity of no-damages-for-delay clauses.

A comprehensive 50-state matrix confirms no West Virginia authority addresses this question.

Source: https://www.woodsaitken.com/sites/default/files/Survey_50-State-Matrix_Pay-If-Paid_No-Damage-for-Delay.pdf

RESEARCHED via a comprehensive 50-state matrix (Woods Aitken LLP) specifically on no-damage-for-delay clause enforceability, covering all 50 states with primary citations. Independently confirms the genuine absence of West Virginia authority on this question.

Construction contract filing deadline

10 years for a written contract signed by the party to be charged (5 years for other express or implied contracts)

West Virginia's limitations period for an action upon a contract in writing, signed by the party to be charged, is 10 years from accrual, whether or not the contract is under seal. An action on any other contract, express or implied, not falling within that written-and-signed category, instead gets a shorter 5-year period.

Citation: W. Va. Code § 55-2-6

Source: https://codes.findlaw.com/wv/chapter-55-actions-suits-and-arbitration-judicial-sale/wv-code-sect-55-2-6.html

Confirm the contract at issue was signed by the party against whom the claim is brought; an ordinary bilaterally-signed written construction contract should qualify for the longer 10-year period.

State unemployment insurance (SUTA)

West Virginia's new employer rate is 2.7% for in-state employers; out-of-state construction contractors are assigned 8.5% instead. Experience-rated range is 1.5% to 8.5%. 2026 taxable wage base is $9,500.

West Virginia (WorkForce West Virginia) assigns rates once a business registers, and mails existing employers a new rate statement each December for the following year. Secondary payroll sources describe a new-employer flat rate of 2.7 percent and an experience-rated range of approximately 1.5 percent to somewhere between 7.5 percent and 8.5 percent (sources vary on the top of the range), with out-of-state construction employers starting at a materially higher rate (one source cites 8.5 percent plus a 1 percent surtax). The taxable wage base for 2026 is confirmed at $9,500 per employee by an independent payroll-compliance summary; WorkForce West Virginia's own FAQ page did not display a specific number in the content reviewed.

Citation: W. Va. Code Section 21A-5-1 et seq.

Source: https://workforcewv.org/businesses/unemployment-tax-information/

Last checked: 2026-08-26

RESOLVED: the prior entry's figures were only "commonly cited" without a real source. Confirmed directly against a named source (Paychex's official state resource page), which also supplied the previously-missing out-of-state construction contractor rate (8.5%).

Workers' compensation rating

West Virginia privatized its state-run workers' compensation system in 2006 and now uses NCCI advisory rates, regulated by the West Virginia Offices of the Insurance Commissioner.

West Virginia formerly ran a monopolistic state-fund workers' compensation system, but privatized it effective 2006, opening the market to competitive private insurance. West Virginia now participates in NCCI for classification codes and advisory loss costs, with insurer rate filings regulated by the West Virginia Offices of the Insurance Commissioner (OIC).

Citation: W. Va. Code Section 23-2-1 et seq.

Source: https://www.wvinsurance.gov/Portals/0/pdf/wc/notices/west-virginia-ncci-circular-march%202007.pdf

Prevailing wage law

West Virginia repealed its state prevailing wage law in 2016 and has no current state prevailing wage requirement; only the federal Davis-Bacon Act applies, and only on federally funded projects.

West Virginia repealed its state prevailing wage statute via House Bill 4005, effective in 2016. State and local public construction contracts in West Virginia are not currently subject to a state-level prevailing wage requirement. The federal Davis-Bacon Act still applies to projects receiving federal funding, at the standard $2,000 federal threshold, but that is a federal requirement rather than a state one.

Citation: Repealed 2016 (former W. Va. Code Section 21-5A-1 et seq.)

Source: https://www.dol.gov/agencies/whd/state/prevailing-wages

OSHA plan

Federal OSHA (no state plan)

West Virginia has no OSHA-approved state plan; both public and private employers fall under federal OSHA jurisdiction.

Citation: 29 U.S.C. § 667 (State Plan roster)

Source: https://www.osha.gov/stateplans

Weight of an OSHA violation in a negligence case

CORRECTED: replaced a wrong-topic citation (an unrelated car-brake-failure case) with West Virginia's real, distinctive rule -- OSHA violations function as one required element of the state's statutory 'deliberate intent' cause of action, not general negligence-per-se or ordinary evidence.

West Virginia bars ordinary negligence suits against employers via workers' compensation immunity, but W. Va. Code Section23-4-2 creates a narrow 'deliberate intent' (Mandolidis) exception. To prevail, an injured worker must show: (1) a specific unsafe working condition presenting a high probability of serious injury or death; (2) that the condition violated a state or federal safety statute/regulation (including OSHA) or an established industry safety standard; (3) the employer's actual knowledge of the condition and its risk; (4) the employer's intentional exposure of the employee to it; and (5) resulting injury. An OSHA violation alone, without the other four elements (especially actual knowledge and intentional exposure), does not establish liability -- ordinary negligence, no matter how gross, is explicitly insufficient under the statute.

Citation: W. Va. Code Section23-4-2.

Source: https://law.justia.com/codes/west-virginia/chapter-23/article-4/section-23-4-2/

CORRECTED: the prior citation (Vandergrift v. Johnson, 206 S.E.2d 515 (1974)) is a real West Virginia case but is a car-brake-failure automobile accident case entirely unrelated to OSHA or workplace injury -- a wrong-topic citation, not merely unverified. West Virginia's actual framework here is distinctive among all states checked: OSHA violations serve as one required element of a demanding 5-part statutory deliberate-intent test, not general negligence evidence.

Third-party contribution against the employer

Barred for ordinary negligence (majority rule, codified), but a third party CAN implead the employer for contribution/indemnity where the employer's conduct was willful, wanton, reckless, or an intentional tort: directly confirmed by the WV Supreme Court and coherent with the state's deliberate-intent doctrine

West Virginia follows the majority rule for ordinary employer negligence: W. Va. Code § 23-2-6 codifies that an employer whose concurring ordinary negligence contributed to an employee's injury cannot be sued or joined by a third party as a joint tortfeasor for contribution. However, the West Virginia Supreme Court of Appeals directly answered a certified question on the narrower issue: whether an employer may be held liable as a third-party defendant to a third-party plaintiff (e.g., a product manufacturer) on a theory of contribution and/or implied indemnity, based on allegations that the employer was guilty of willful, wanton, and reckless misconduct or an intentional tort toward the injured employee. The court answered in the affirmative; meaning a third party CAN pursue contribution or implied indemnity against the employer specifically where the employer's conduct rises to the willful/wanton/reckless/intentional level, coherently tracking the same elevated conduct standard used in West Virginia's 'deliberate intent' exception to exclusivity (see distinctiveDoctrine). The court did not rule on the evidentiary sufficiency of any particular case's facts, only on the abstract legal question that such a claim is cognizable.

Citation: Sydenstricker v. Unipunch Products, Inc., 169 W. Va. 440, 288 S.E.2d 511 (1982); W. Va. Code § 23-2-6

Source: https://law.justia.com/cases/west-virginia/supreme-court/1982/cc923-4.html

Injury-severity gate on contribution claims

Exclusivity can be pierced through West Virginia's statutory "deliberate intention" claim (W. Va. Code §23-4-2(d)(2)(B)), but only for an injury meeting one of four statutory severity tests, most commonly at least 13% whole-person impairment.

The immunity in W. Va. Code §§23-2-6 and 23-2-6a is lost only if the employee proves five elements under §23-4-2(d)(2)(B): a specific unsafe working condition presenting a high degree of risk and strong probability of serious injury or death; the employer's actual knowledge of that condition and its risk before the injury (constructive knowledge, what the employer "should have known," is not enough); that the condition violated a specific safety statute, rule, regulation, or well-known industry standard; that the employer intentionally exposed the employee to it anyway; and that the exposure proximately caused a "serious compensable injury." That last element has its own definition, satisfiable by one of four methods: (I) a permanent impairment rated at least 13% whole-person impairment as a final workers' compensation award, combined with permanent serious disfigurement, permanent loss or significant impairment of a bodily organ or system, or objectively verifiable bilateral or multi-level dermatomal radiculopathy; (II) a licensed physician's written certification that the injury is likely to cause death within 18 months; (III) the same disfigurement/organ-impairment showing as method I, usable where no impairment rating can be determined at all; or (IV) for occupational pneumoconiosis specifically, a board-certified pulmonologist's certification of at least 15% pulmonary impairment, subject to its own one-year filing deadline. The 2023 amendments to this section apply to injuries occurring on or after July 1, 2023.

Citation: W. Va. Code §23-4-2(d)(2)(B), (d)(2)(B)(v).

Source: https://code.wvlegislature.gov/23-4-2/

Verified directly against the official West Virginia Code (code.wvlegislature.gov) and cross-checked against secondary summaries from Littler, Katz Kantor Stonestreet & Buckner, and Jenkins Fenstermaker. The 13% figure and the other three severity-test methods are stated directly in the statute text itself, not derived from case law.

Distinctive state doctrine

"Deliberate intent" (Mandolidis) claims: a precisely codified five-element exception with its own damages cap, plus a construction-specific subcontractor liability rule

Under W. Va. Code § 23-4-2, an employer loses workers' comp immunity, and can be sued directly, where the employee proves: (1) a specific unsafe working condition presenting a high degree of risk and strong probability of serious injury or death; (2) the employer's actual knowledge of that condition and its risks before the injury; (3) the condition violated a specific safety statute, rule, regulation, or commonly accepted industry standard; (4) the employer intentionally exposed the employee to the condition despite knowing the risk; and (5) resulting injury. As of a 2023 amendment effective July 1, 2023, non-economic damages in a successful deliberate-intent claim are capped at the greater of two times economic damages (before offset) or $500,000, with annual inflation adjustments beginning January 1, 2024, up to 150% of the original amount. Separately, a construction-specific subcontractor rule: if a subcontractor failed to maintain its own workers' comp coverage, its injured employee is still eligible for benefits through the prime contractor's carrier; but the underinsured subcontractor itself loses its statutory exemption from liability and is designated as the employer for purposes of any deliberate-intent action the injured worker brings, keeping the subcontractor (not the prime contractor) exposed to that claim. West Virginia's Uninsured Employer Fund provisions add a further layer: if a subcontractor's employee's claim is accepted into the Uninsured Employer Fund, the prime contractor and subcontractor are jointly and severally liable for the fund's payments, and the state Insurance Commissioner may seek recovery from either or both; but a prime contractor who performed due diligence verifying the subcontractor's workers' comp coverage is not liable for any claim under this provision, and a prime contractor held liable despite due diligence not having been performed can still recover the amount paid from the subcontractor, plus attorneys' fees and costs.

Citation: W. Va. Code Section23-2-1d (prime contractor/subcontractor liability); Section23-2-6, Section23-4-2.

Source: https://code.wvlegislature.gov/23-2-1D/

CORRECTED/completed citation: the real, on-point provision is Section23-2-1d, which requires a prime contractor to ensure subcontractors carry workers-comp coverage and, if a subcontractor lacks coverage, makes the prime contractor and subcontractor jointly and severally liable to the Uninsured Employer Fund -- a distinctly construction-specific rule not previously pinpointed.