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House Bill 3219 History
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ENROLLED
H. B.3219
(By Delegates Amores, Webster, Caputo, Brown,
Hatfield & Marshall)
[Passed April 6, 2005; in effect ninety days from passage.]
AN ACT to amend § 14-2A-3 of the Code of West Virginia, 1931, as
amended, relating to compensation awards to victims of crimes,
patient; amending the definition of claimant so as to include
persons who are assignees of a crime victim, hold power of
attorney with respect to the crime victim, or otherwise have
been authorized to act on a victim's behalf.
Be it enacted by the Legislature of West Virginia:
That §14-2A-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
§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;
(4) A person who is authorized to act on behalf of a victim,
dependent or a third person who is not a collateral source,
including ,but not limited to, assignees, persons holding power of
attorney or other persons who hold authority to make or submit
claims in place of or on behalf of a victim, a dependent or 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. For purposes of this article, the term "economic loss"
includes a lost scholarship as defined in this section.
(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
six 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 cleanup;
(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.
(m) "Lost scholarship" means a scholarship, academic award,
stipend or other monetary scholastic assistance which had been
awarded or conferred upon a victim in conjunction with a
postsecondary school educational program and, which the victim is
unable to receive or use, in whole or in part, due to injuries
received from criminally injurious conduct.