H. B. 2310
(By Delegate Kiss, By Request)
[Introduced February 1, 1995; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend article ten-a, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
sixteen, relating to the right of subrogation by the
division of rehabilitation services; rules as to effect of
subrogation.
Be it enacted by the Legislature of West Virginia:
That article ten-a, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
sixteen, to read as follows:
ARTICLE 10A. REHABILITATION SERVICES.
§18-10A-16. Right of subrogation by division of rehabilitation
services; rules as to effect of subrogation.
(a) If a client receives rehabilitation services because of
any sickness, injury, disease or disability, and another person
is legally liable for the expense of the services, the division
may be reimbursed for the expense by the other person. If the
client has been reimbursed by the other person, the division may
recover reimbursement for the expense from the client. The
division shall be legally subrogated to the rights of the client
against the liable other person, but only to the extent of the
reasonable value of the services paid and attributable to the
sickness, injury, disease or disability. The director may
compromise, settle and execute a release of any such claim. The
provisions of this subsection are subject to the provisions of
subsection (b) of this section.
(b) Nothing in this section may be construed so as to
prevent the client from maintaining an action for injuries
received by him or her against any other person and from
including therein, as part of the compensatory damages sought to
be recovered, the amount of rehabilitation expenses.
If the action is tried before a jury, the jury may not be
informed of the interest of the division of rehabilitation
services, if any, and that fact may not be disclosed to the jury
at any time. The trial judge shall, upon entry of judgment on
the verdict, direct that an amount equal to the amount of
rehabilitation expenses be withheld and paid over to the division
of rehabilitation services. Irrespective of whether the case is
terminated by judgment or by settlement without trial, from the
amount required to be paid to the division of rehabilitation
services there shall be deducted the attorney fees attributable
to the amount in accordance with and in proportion to the fee
arrangement made between the client and his or her attorney of
record so that the division shall bear the pro rata portion of
the attorney fees.
Nothing in this section may preclude any client who has
received rehabilitation services from settling any cause of
action which he or she may have against another person and
delivering to the division, from the proceeds of the settlement,
reimbursement for expenses of the division for rehabilitation
services. Any release given by a client to another person which releases the other person of liability with respect to any cause
of action shall be binding upon the division if the other person
for whose benefit the release inures is unaware of, or has not
been informed of, the interest of the division therein. If the
other person is aware of or has been informed of the division's
interest in the matter, it shall be the duty of the other person
to whose benefit the release inures to withhold so much of the
settlement as may be necessary to reimburse the division to the
extent of its interest in the settlement. If the division
intends to maintain an action against any person for the
collection of sums paid by it for rehabilitation services, it
shall, prior thereto, notify the client of its intent to bring an
action at least thirty days prior to the bringing thereof. The
notice shall: (1) Inform the client of the division's intent;
(2) advise the client of the right to bring the action in his or
her own name; (3) advise the client that he or she may include as
a part of his or her claim the sums claimed by the division; and
(4) advise the client that unless the division is notified by the
client or his or her representative within thirty days of the
date of the receipt of notice, the division shall proceed to maintain an action to the extent of its interest in the name of
the division. Any action subsequently brought by the division in
its name as subrogee of the client may not preclude the client
from maintaining an action in his or her own name for the full
amount previously awarded the division as hereinafter provided.
To the extent provided herein and in no other event, unless
specifically provided by law, may any cause of action be
divisible or capable of being split if the cause arises from the
same transaction.
NOTE: The purpose of this bill is to provide the right of
subrogation by the division of rehabilitation services and the
rules as to effect of subrogation.
Section sixteen, article ten-a, chapter eighteen is new;
therefore, strike-throughs and underscoring have been omitted.