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ENROLLED
Senate Bill No. 659
(By Senators Tomblin, Mr. President, Plymale and Kessler)
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[Passed March 8, 2008; to take effect July 1, 2008.]
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AN ACT to amend and reenact §14-2A-3 and §14-2A-14 of the Code of
West Virginia, 1931, as amended, all relating to crime
victims' compensation; increasing the allowable expense for
funerals, cremations and burials; and increasing the
compensation to all claimants because of the death of the
victim.
Be it enacted by the Legislature of West Virginia:
That §14-2A-3 and §14-2A-14 of the Code of West Virginia,
1931, 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;
(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.
(6) A person who owns real property damaged by the operation
of a methamphetamine laboratory without the knowledge or consent of
the owner of the real property.
(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 when the person engaging in the
conduct committed negligent homicide, driving under the influence
of alcohol, controlled substances or drugs, reckless driving or
when the person leaves the scene of the accident.
(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
seven thousand dollars for expenses in any way related to funerals,
cremations and burials. 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 five thousand dollars, for cleanup
of real property damaged by a methamphetamine laboratory or a
charge, not to exceed one thousand dollars, for any other 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.
(D) Reasonable travel expenses for a claimant to return a
person who is a minor or incapacitated adult who has been
unlawfully removed from this state to another state or country, if
such removal constitutes a crime under the laws of this state.
Reasonable travel expenses to another state for such purpose may
not exceed two thousand dollars and reasonable travel expenses for
such purpose to another county may not exceed three thousand
dollars.
(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. "Work loss" also includes loss of income from work by
the parent or legal guardian of a minor victim who must miss work
to take care of the minor victim.
(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. "Victim" shall also include the owner of real
property damaged by the operation of a methamphetamine laboratory.
(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 post-
secondary 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.
§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 72-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 fifty thousand
dollars in the aggregate.
(2) In the event the victim's personal injuries are so severe
as to leave the victim with a disability, as defined in Section 223
of the Social Security Act, as amended, as codified in 42 U. S. C.
§423, 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.