Senate Bill No. 141
(By Senators Wooton, Ball, Dittmar, Hunter, Oliverio, Ross,
Snyder, White, Buckalew, Deem and Kimble)
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[Originating in the Committee on the Judiciary;
reported February 27, 1997.]
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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, all relating
generally to compensation awards to victims of crimes;
including restitution as a collateral source of income;
increasing the amount awarded for death expenses; including
acts of terrorism in definition of criminally injurious
conduct; and authorizing awards for pain and suffering.
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, all 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.
(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, except 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) "Allowable expense" means reasonable charges incurred or
to be incurred for reasonably needed products, services and
accommodations, including those for medical care, prosthetic
devices, eye glasses, dentures, rehabilitation and other remedial
treatment and care.
Allowable expense includes a total charge not in excess of
three four thousand dollars for expenses in any way related to a
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.
(g) "Work loss" means a 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 the 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 a 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 shall 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 shall 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 shall 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 shall may not approve an award of
compensation if the injury occurred while the victim was confined
in any state, county or city 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) Except in the case of death, compensation payable to a
victim and to all other claimants sustaining economic loss because
of injury to that victim shall may not exceed twenty thousand
dollars in the aggregate. Compensation payable to a victim of
criminally injurious conduct which causes permanent injury may
include, in addition to economic loss, an amount up to fifteen
thousand dollars for emotional distress and pain and suffering
which are proximately caused by such conduct.
Compensation payable
to all claimants because of the death of the victim shall may not
exceed thirty thousand dollars in the aggregate, but may include,
in addition to economic loss, compensation of up to fifteen
thousand dollars to the claimants for sorrow, mental anguish and solace.
(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.
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(Note: The purpose of this bill is to include restitution as
a collateral source, increase the maximum allowable expenses for
funeral, cremation, and burial from $3,000.00 to $4,000.00, to
amend the definition of criminally injurious conduct to include an
act of terrorism, and
authorizing awards up to $15,000 for pain and
suffering in addition to economic loss.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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FINANCE COMMITTEE AMENDMENTS
On page _____, section three, line _____, by striking out the
word "obligations";
On page _____, section three, line _____, after the word
"insurance" by striking out the semicolon and inserting the word
"or";
On page _____, section three, line _____, after the word
"fine" by inserting a comma and striking out the word "or";
On page _____, section three, line _____, by striking out the
word "so";
On page _____, section three, line _____, after the word
"punishable" by inserting the words "by fine, imprisonment or
death";
On page _____, section three, line _____, by striking out the
words "there shall be taken" and inserting in lieu thereof the
words "the judge or commissioner shall take";
On page ______, section three, line _____, after the word
"individual" by inserting the word "supplied";
On page _____, section three, line _____, after the word
"herself" by striking out the word "supplied";
On page _____, section three, line _____, by striking out the
words "shall also include" and inserting in lieu thereof the words
"also includes";
On page _____, section fourteen, line _____, by striking out
the word "by" and inserting in lieu thereof the word "from";
On page _____, section fourteen, line _____, after the word
"recoupment," by inserting the words "the judge or commissioner
shall reopen";
On page _____, section fourteen, line _____, by striking out
the words "shall be reopened";
On page _____, section fourteen, line _____, after the word
"and" by inserting the words "shall approve";
On page _____, section fourteen, line _____, by striking out
the words "shall be approved";
On page _____, section fourteen, line _____, by striking out
the words "it is determined" and inserting in lieu thereof the
words "he or she determines";
And,
On page _____, section fourteen, line _____, by striking out
the word "such" and inserting in lieu thereof the word "the".