Full Retroactivity In West Virginia
In determining whether to extend full retroactivity, the following factors are to be considered:
First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified.
Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded.
Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties.
Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored.
Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity.
Finally, West Virginia Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions. Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979).
Sizemore v. State Workmen's Compensation Comm'r, 159 W. Va. 100, 219 S.E.2d 912 (1975) ("A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage can it be considered to be retroactive in application.").