Construction Claim Rules in West Virginia

Statutory interest rate

2 points above the Fifth Federal Reserve District secondary discount rate, capped at 9% and floored at 4%, for both pre- and post-judgment

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%. Where the claim arises from a written contract, prejudgment interest 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/

Some published charts still give the pre-2018 formula of 3 points above the discount rate with an 11% cap and a 7% floor. Those figures only matter for an older claim date.

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

Unsettled: West Virginia has no current decision setting an ACV method

West Virginia has no modern controlling case. A 1942 decision limited recovery to salvage value in a narrow situation, a school building already slated for demolition and vacated when it burned, because admitting evidence of the planned demolition would have invited speculation. It is not a general rule that ACV means salvage value, but it is the only West Virginia Supreme Court of Appeals authority touching ACV. Published sources disagree about what the state follows: one reads the 1942 case as a departure from the broad evidence rule, another groups West Virginia with broad evidence states on the strength of its use of the 1943 standard fire policy form, the Insurance Commissioner's consumer material uses replacement cost less depreciation language and a fourth source says West Virginia has no ACV decision at all. The claims settlement regulation, 114 CSR 14, contains no valuation formula, so the Commissioner's consumer wording is not backed by a binding rule 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

Four published characterisations of West Virginia's rule conflict and none can be reconciled, so all four are set out above rather than picking one. Treat West Virginia's ACV rule as unsettled.

ACV statute or regulation

No West Virginia statute or regulation defines an ACV calculation method 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

Recoverable depreciation holdback

No West Virginia statute or regulation sets holdback timing or a labor rule for property claims, so the policy terms control. The one depreciation rule on the books covers vehicles.

W. Va. Code R. § 114-14-7 permits betterment and depreciation deductions only for parts normally subject to repair and replacement, limited to the proportion of the part's expired useful life and requires the calculations to be itemised in the claim file. That regulation governs automobile claims rather than property or homeowners claims. Nothing addresses holdback release on a property loss.

Citation: W. Va. Code R. § 114-14-7 (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

“No damages for delay” clause enforceability

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

No West Virginia state or federal decision addresses the validity of no-damages-for-delay clauses, so there is no West Virginia rule to apply.

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

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. Two deadlines sit in front of that one on most construction claims. A mechanic's lien and a payment bond claim each run on their own, far shorter clock, counted from last furnishing rather than from breach and missing either one removes the security while leaving the contract claim alive but unsecured. Check those dates first. Accrual is the other half of the question: the period runs from breach, which on a payment dispute is usually the date payment came due rather than the date the work was done.

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.

WorkForce West Virginia assigns a rate once a business registers and mails existing employers a new rate statement each December for the following year. The new-employer rate is 2.7% for an in-state employer. An out-of-state construction contractor is assigned 8.5% instead, reported with a 1% surtax on top. Experience-rated employers run from about 1.5% to 8.5%, with sources differing on the top of the range. The 2026 taxable wage base is $9,500 per employee.

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

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

Last checked: 2026-08-26

The out-of-state construction rate is the figure that matters for a contractor entering West Virginia: 8.5% against 2.7%. Confirm your assigned rate on the December statement.

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

Comparative / contributory negligence rule

Modified comparative fault, recovery barred above 50% fault (51% bar)

Recovery is reduced in proportion to fault and barred once the worker is more than 50% at fault. A worker exactly 50% at fault still recovers half. Effective 25 May 2015. Causes of action accruing before that date fall under the old 50% bar.

Citation: W. Va. Code § 55-7-13c(c) (bar); § 55-7-13a(b) (allocation among plaintiffs, defendants and nonparties); § 55-7-13d (determination of fault, imputed fault, criminal-conduct bar). Former § 55-7-13 was repealed by 2015 Acts ch. 59.

Source: https://law.justia.com/codes/west-virginia/chapter-55/article-7/

Verified against: statute text of W. Va. Code ss 55-7-13a and 55-7-13c as quoted in a fifty-state apportionment table, cross-read against the article index showing s 55-7-13 repealed by 2015 Acts ch. 59

Non-economic damages cap

No general cap on non-economic damages

Most states cap non-economic damages only in medical malpractice actions, which does not reach a third-party construction claim. Economic losses, medical bills, lost wages, future earning capacity, are not capped by these statutes.

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. Under federal jurisdiction the citation is issued by an OSHA area office and contested before the federal Occupational Safety and Health Review Commission. Federal OSHA does not cover state and local government employees, so a public employee injured on a public job falls outside it. Reporting deadlines are a work-related fatality within 8 hours, an inpatient hospitalisation, amputation or loss of an eye within 24 hours. For a construction claim the inspection file matters more than the citation: photographs, measurements, witness statements and the inspector's narrative are usually obtainable and are often the best contemporaneous record of the site.

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

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

Weight of an OSHA violation in a negligence case

An OSHA violation is one required element of West Virginia's statutory deliberate intent claim rather than ordinary negligence evidence

West Virginia bars ordinary negligence suits against employers via workers' compensation immunity, but W. Va. Code § 23-4-2 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 § 23-4-2.

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

Third-party contribution against the employer

Contribution against the employer is barred for ordinary negligence, but allowed where the employer's conduct was willful, wanton, reckless or an intentional tort.

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/

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. 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 § 23-2-1d (prime contractor/subcontractor liability); § 23-2-6, § 23-4-2.

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