H. B. 2811
(By Delegates Michael and Kelley)
[Introduced February 17, 1999; referred to the
Committee on Finance.]
A BILL to amend and reenact sections three and fourteen, article
two-a, chapter fourteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
payment of awards to crime victims; allowing payment of
claims for crime scene clean-up, victim relocation, mental
health counseling for secondary victims of crime and certain
travel expenses; clarifying that mental health counseling is
an allowable expense; and increasing the total award that
may be made for victims left permanently and totally
disabled.
Be it enacted by the Legislature of West Virginia:
That sections three and fourteen
, article two-a, chapter
fourteen
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, to read as
follows:
ARTICLE 2A. COMPENSATION AWARDS TO VICTIMS OF CRIMES.
§14-2A-3. Definitions.
As used in this article, the term:
(a) "Claimant" means any of the following persons, whether
residents or nonresidents of this state, who claim an award of
compensation under this article:
(1) A victim: Provided, That the term victim does not
include a nonresident of this state where the criminally
injurious act did not occur in this state;
(2) A dependent, spouse or minor child of a deceased victim;
or in the event that the deceased victim is a minor, the parents,
legal guardians and siblings of the victim;
(3) A third person other than a collateral source who
legally assumes or voluntarily pays the obligations of a victim,
or of a dependent of a victim, which obligations are incurred as
a result of the criminally injurious conduct that is the subject
of the claim; and
(4) A person who is authorized to act on behalf of a victim,
dependent or a third person who is not a collateral source; and,
in the event that the victim, dependent or third person who is
not a collateral source is a minor or other legally incompetent
person, the duly qualified fiduciary of the minor; and
(5) A person who is a secondary victim in need of mental
health counseling due to the person's exposure to the crime committed. An award to a secondary victim may not exceed one
thousand dollars.
(b) "Collateral source" means a source of benefits or
advantages for economic loss otherwise compensable that the
victim or claimant has received, or that is readily available to
him or her, from any of the following sources:
(1) The offender, including any restitution received from
the offender pursuant to an order by a court of law sentencing
the offender or placing him or her on probation following a
conviction in a criminal case arising from the criminally
injurious act for which a claim for compensation is made;
(2) The government of the United States or any of its
agencies, a state or any of its political subdivisions or an
instrumentality of two or more states;
(3) Social security, medicare and medicaid;
(4) State-required, temporary, nonoccupational disability
insurance; other disability insurance;
(5) Workers' compensation;
(6) Wage continuation programs of any employer;
(7) Proceeds of a contract of insurance payable to the
victim or claimant for loss that was sustained because of the
criminally injurious conduct;
(8) A contract providing prepaid hospital and other health
care services or benefits for disability; and
(9) That portion of the proceeds of all contracts of insurance payable to the claimant on account of the death of the
victim which exceeds twenty-five thousand dollars.
(c) "Criminally injurious conduct" means conduct that occurs
or is attempted in this state or in any state not having a victim
compensation program which by its nature poses a substantial
threat of personal injury or death, and is punishable by fine or
imprisonment or death, or would be so punishable but for the fact
that the person engaging in the conduct lacked capacity to commit
the crime under the laws of this state. Criminally injurious
conduct also includes an act of terrorism, as defined in 18
U.S.C. §2331, committed outside of the United States against a
resident of this state. Criminally injurious conduct does not
include conduct arising out of the ownership, maintenance or use
of a motor vehicle, except when the person engaging in the
conduct intended to cause personal injury or death, or except
when the person engaging in the conduct committed negligent
homicide, driving under the influence of alcohol, controlled
substances or drugs or reckless driving.
(d) "Dependent" means an individual who received over half
of his or her support from the victim. For the purpose of
determining whether an individual received over half of his or
her support from the victim, there shall be taken into account
the amount of support received from the victim as compared to the
entire amount of support which the individual received from all
sources, including support which the individual himself or herself supplied. The term "support" includes, but is not
limited to, food, shelter, clothing, medical and dental care and
education. The term "dependent" includes a child of the victim
born after his or her death.
(e) "Economic loss" means economic detriment consisting only
of allowable expense, work loss and replacement services loss.
If criminally injurious conduct causes death, economic loss
includes a dependent's economic loss and a dependent's
replacement services loss. Noneconomic detriment is not economic
loss; however, economic loss may be caused by pain and suffering
or physical impairment.
(f)(1) "Allowable expense" means reasonable charges incurred
or to be incurred for reasonably needed products, services and
accommodations, including those for medical care, mental health
counseling, prosthetic devices, eye glasses, dentures,
rehabilitation and other remedial treatment and care.
(2) Allowable expense includes a total charge not in excess
of four thousand dollars for expenses in any way related to
funeral, cremation and burial. It does not include that portion
of a charge for a room in a hospital, clinic, convalescent home,
nursing home or any other institution engaged in providing
nursing care and related services in excess of a reasonable and
customary charge for semiprivate accommodations, unless
accommodations other than semiprivate accommodations are
medically required.
(3) Allowable expense also includes:
(A) A charge, not to exceed one thousand dollars, for crime
scene clean-up;
(B) Victim relocation costs, not to exceed one thousand
dollars; and
(C) Reasonable travel expenses, not to exceed one thousand
dollars,
for a claimant to attend court proceedings that are
conducted for the prosecution of the offender.
(g) "Work loss" means loss of income from work that the
injured person would have performed if he or she had not been
injured and expenses reasonably incurred or to be incurred by him
or her to obtain services in lieu of those he or she would have
performed for income, reduced by any income from substitute work
actually performed or to be performed by him or her, or by income
he or she would have earned in available appropriate substitute
work that he or she was capable of performing but unreasonably
failed to undertake.
(h) "Replacement services loss" means expenses reasonably
incurred or to be incurred in obtaining ordinary and necessary
services in lieu of those the injured person would have
performed, not for income but for the benefit of himself or
herself or his or her family, if he or she had not been injured.
(i) "Dependent's economic loss" means loss after a victim's
death of contributions or things of economic value to his or her
dependents, not including services they would have received from the victim if he or she had not suffered the fatal injury, less
expenses of the dependents avoided by reason of the victim's
death.
(j) "Dependent's replacement service loss" means loss
reasonably incurred or to be incurred by dependents after a
victim's death in obtaining ordinary and necessary services in
lieu of those the victim would have performed for their benefit
if he or she had not suffered the fatal injury, less expenses of
the dependents avoided by reason of the victim's death and not
subtracted in calculating dependent's economic loss.
(k) "Victim" means a person who suffers personal injury or
death as a result of any one of the following: (1) Criminally
injurious conduct; (2) the good faith effort of the person to
prevent criminally injurious conduct; or (3) the good faith
effort of the person to apprehend a person that the injured
person has observed engaging in criminally injurious conduct, or
who the injured person has reasonable cause to believe has
engaged in criminally injurious conduct immediately prior to the
attempted apprehension.
(l) "Contributory misconduct" means any conduct of the
claimant, or of the victim through whom the claimant claims an
award, that is unlawful or intentionally tortious and that,
without regard to the conduct's proximity in time or space to the
criminally injurious conduct has causal relationship to the
criminally injurious conduct that is the basis of the claim and shall also include the voluntary intoxication of the claimant,
either by the consumption of alcohol or the use of any controlled
substance when the intoxication has a causal connection or
relationship to the injury sustained. The voluntary intoxication
of a victim is not a defense against the estate of a deceased
victim.
§14-2A-14. Grounds for denial of claim or reduction of awards;
maximum awards.
(a) Except as provided in subsection (b), section ten of
this article, the judge or commissioner may not approve an award
of compensation to a claimant who did not file his or her
application for an award of compensation within two years after
the date of the occurrence of the criminally injurious conduct
that caused the injury or death for which he or she is seeking an
award of compensation.
(b) The judge or commissioner may not approve an award of
compensation if the criminally injurious conduct upon which the
claim is based was not reported to a law-enforcement officer or
agency within seventy-two hours after the occurrence of the
conduct, unless it is determined that good cause existed for the
failure to report the conduct within the seventy-two hour period.
(c) The judge or commissioner may not approve an award of
compensation to a claimant who is the offender or an accomplice
of the offender who committed the criminally injurious conduct, nor to any claimant if the award would unjustly benefit the
offender or his or her accomplice.
(d) A judge or commissioner, upon a finding that the
claimant or victim has not fully cooperated with appropriate law- enforcement agencies, or the claim investigator, may deny a
claim, reduce an award of compensation, or reconsider a claim
already approved.
(e) A judge or commissioner may not approve an award of
compensation if the injury occurred while the victim was confined
in any state, county or regional jail, prison, private prison or
correctional facility.
(f) After reaching a decision to approve an award of
compensation, but prior to announcing the approval, the judge or
commissioner shall require the claimant to submit current
information as to collateral sources on forms prescribed by the
clerk of the court of claims. The judge or commissioner shall
reduce an award of compensation or deny a claim for an award of
compensation that is otherwise payable to a claimant to the
extent that the economic loss upon which the claim is based is or
will be recouped from other persons, including collateral
sources, or if the reduction or denial is determined to be
reasonable because of the contributory misconduct of the claimant
or of a victim through whom he or she claims. If an award is
reduced or a claim is denied because of the expected recoupment
of all or part of the economic loss of the claimant from a collateral source, the amount of the award or the denial of the
claim shall be conditioned upon the claimant's economic loss
being recouped by the collateral source: Provided, That if it is
thereafter determined that the claimant will not receive all or
part of the expected recoupment, the claim shall be reopened and
an award shall be approved in an amount equal to the amount of
expected recoupment that it is determined the claimant will not
receive from the collateral source, subject to the limitation set
forth in subsection (g) of this section.
(g)(1) Except in the case of death or as provided in
subdivision (2) of this subsection, compensation payable to a
victim and to all other claimants sustaining economic loss
because of injury to that victim may not exceed twenty-five
thousand dollars in the aggregate. Compensation payable to all
claimants because of the death of the victim may not exceed
thirty-five thousand dollars in the aggregate.
(2) In the event the victim's personal injuries are so
severe as to leave the victim permanently and totally disabled,
the court may award an additional amount, not to exceed one
hundred thousand dollars, for special needs attributable to the
injury.
(h) If an award of compensation of five thousand dollars or
more is made to a minor, a guardian shall be appointed pursuant
to the provisions of article ten, chapter forty-four of this code to manage the minor's estate.
NOTE: The purpose of this bill is to modernize aspects of
the Crime Victims Compensation Program. It makes changes to
allow payment of claims for crime scene clean-up, victim
relocation, mental health counseling for secondary victims and
limited travel expenses. It clarifies that mental health
counseling is an allowable expense. It also allows an increase
in awards when a victim is left permanently and totally disabled.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.