Senate Bill No. 767

(By Senators Wooton, Ball, Dittmar, Kessler, Ross and Snyder)


[Originating in the Committee on the Judiciary;

reported March 4, 1998.]


A BILL to amend and reenact section fourteen, article ten, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to judicial approval of a settlement of a civil action involving injuries to a child.

Be it enacted by the Legislature of West Virginia:
That section fourteen, article ten, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
§44-10-14. Authority of guardian to settle claim of ward for injuries to himself or his property; procedure.

In any case where an infant is injured in his person or his property by another, the legal guardian of such infant may negotiate with the person inflicting such injury for the settlement of any claim for damages therefor. But the guardian shall, when proceeding under this section, in all cases, before making final settlement, file his petition in equity with the circuit court of the county, or judge thereof in vacation, in which he was appointed, for permission to settle such claim, in which petition he shall state the name and age of his ward, the nature and character of the injury, and the facts relied upon by him to induce the court or judge to approve such proposed settlement. The court, or judge thereof in vacation, shall appoint a guardian ad litem for the ward who shall answer the petition. Upon the hearing thereof, the court or judge thereof in vacation, may grant or refuse the petition by a proper order, as may seem just and proper. In case the court or judge shall grant the petition, there may be included in such order permission to the guardian to pay to his attorney such amount in connection with the settlement of the claim as in the discretion of the court or judge is reasonable and proper, taking into consideration the amount to be paid as damages, the necessities of the infant, the nature of the injury, the probability of recovery in case of suit, the difficulties involved in effecting the settlement, and such other matters as may properly have a bearing on the reasonable compensation to be allowed such attorney. In case the court or judge approves the prayer of the petition, the guardian may be authorized to settle and receive the amount of the settlement, and to execute to the tort-feasor a release therefor. Before so doing he shall execute a bond in an amount equal to the approved settlement, unless he be already under bond sufficient for the purpose, with surety or sureties approved by the clerk of said court, conditioned to account for and pay over the amount of the approved settlement as required by law, which bond shall be filed and recorded by the clerk.
The release to the tort-feasor may be in form or effect as follows:
I, _______________, the guardian of ______________, in consideration of the sum of $_________, and under authority of an order of the circuit court of __________ county, entered on the _________ day of _________, 19_____, do hereby release ______________ from all claims and demands on account of injuries inflicted upon my said ward (or my said ward's property, as the case may be) by said _____________ on the _______ day of __________, 19_____, at _________ (here state the place or places).
Guardian of
After receiving such release from the guardian of an infant who has been injured in his person or in his property by such person, the tort-feasor shall be forever acquit therefor.
Nothing in this section contained shall be construed as preventing any tort-feasor from settling any such claim in any of the modes now recognized by law.

(NOTE: The purpose of this bill is to require settlements of civil actions involving injuries to children to be reviewed by a guardian ad litem and approved by a court, even when no proceedings have been instituted in circuit court.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)