Introduced Version
House Bill 4071 History
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Key: Green = existing Code. Red = new code to be enacted
H. B.
4071
(By Mr. Speaker, Mr. Kiss, and Delegates Michael
Martin, Staton, Ashley and Trump)
[Introduced January 23, 1998; referred to
the Committee on Finance.)
A BILL to amend and reenact sections thirteen, fourteen and
fifteen, article two-a, chapter fourteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating generally to compensation awards to victims of
crimes; modifying the process of reviewing findings of facts,
assignment and initial evaluation of claims; requiring
notification of claim decisions within ten days of the initial
decision; increasing the maximum amount of awards to certain
victims; allowing compensation to victims for pain and
suffering; allowing discretion in appointing a guardian for
minors who have been awarded claims; making some mandatory
duties of the court, claimants, court clerk and attorney
general discretionary; and modifying the method that claimants
file requests for hearings before the court.
Be it enacted by the Legislature of West Virginia:
That sections thirteen, fourteen and fifteen, 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-13. Notice to claimant of claim investigator's
recommendation; evaluation of claim by judge
or commissioner.
(a) The clerk of the court of claims, upon receipt of the
claim investigator's finding of fact and recommendation, shall
forward a copy of the finding of fact and recommendation to the
claimant with a notice informing the claimant that any response, in
the form of objections or comments directed to the finding of fact
and recommendation, must be filed with the clerk within thirty days
of the date of the notice. After the expiration of such thirty- day period, the clerk shall assign the claim to a judge or
commissioner of the court. assign the claim to a judge or
commissioner of the court. The judge or commissioner to whom the
claim is assigned shall review the finding of fact and
recommendation and shall, within forty-five days after assignment
by the clerk, evaluate the claim without a hearing and either deny
the claim or approve an award of compensation to the claimant.
(b) The judge or commissioner to whom the claim is assigned
shall review the finding of fact and recommendation and any response submitted by the claimant and, if deemed appropriate, may
request the claim investigator to comment in writing on the
claimant's response. The judge or commissioner shall, within
forty-five days after assignment by the clerk, evaluate the claim
without a hearing and either deny the claim or approve an award of
compensation to the claimant. The clerk shall, within ten days
after receipt of the decision of the reviewing judge or
commissioner, transmit to the claimant or the claimant's attorney
of record a copy of said decision.
§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 seventy-two 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 by 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 from 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 may not exceed twenty-five thirty-five
thousand dollars in the aggregate. In the case of permanent injury
to the victim, compensation for pain and suffering and mental
anguish may not exceed fifteen thousand dollars, which compensation
shall be payable solely to the victim. Compensation payable to all
claimants because of the death of the victim may not exceed thirty-
five fifty thousand dollars in the aggregate.
(h) If an award of compensation of five thousand dollars or
more is made to a minor, a guardian shall may be appointed pursuant
to the provisions of article ten, chapter forty-four of this code to manage the minor's estate.
§14-2A-15. Hearings.
(a) If either the claim investigator or the claimant disagrees
with the approval of an award or the denial of a claim in the
summary manner set forth in the preceding sections of this article,
the claim investigator or the claimant, or both, shall may file
with the clerk court a request for hearing in the form of written
comments setting forth the basis for their objection. Such request
for hearing shall be filed within twenty-one forty-five days after
notification by the judge or commissioner of his decision.
receiving from the clerk, the decision of the judge or
commissioner.
(b) Upon receipt of a request for hearing, the clerk shall
place the claim upon the regular docket of the court for hearing,
shall may advise the attorney general and the claimant of the
receipt of the request and docketing of the claim, and shall may
request the attorney general to commence negotiations with the
claimant.: Provided, That if it is determined that the amount of
an award is the sole basis of the objection, then the court shall
have discretion to review the claim without hearing.
(c) During the period of negotiations and pending hearing, the
attorney general, shall may, if possible, reach an agreement with
the claimant regarding the facts upon which the claim is based so
as to avoid the necessity for the introduction of evidence at the hearing. If the parties are unable to agree upon the facts, an
attempt shall be made to stipulate the questions of fact in issue.
(d) The hearing held in accordance with this section shall may
be before a single judge or commissioner to whom the claim has not
been previously assigned. Hearings before a judge or commissioner
may, in the discretion of such hearing officer, be held at such
locations throughout the state as will facilitate the appearance of
the claimant and witnesses.
(e) The hearing shall may be conducted so as to disclose all
material facts and issues. The judge or commissioner may examine
or cross-examine witnesses. The judge and commissioner may call
witnesses or require evidence not produced by the parties; may
stipulate the questions to be argued by the parties; and may
continue the hearing until some subsequent time to permit a more
complete presentation of the claim.
(f) After the close of the hearing the judge or commissioner
shall consider the claim and shall may conclude his determination,
if possible, within thirty days.
(g) The court shall adopt and may from time to time amend
rules of procedure to govern proceedings before the court in
accordance with the provisions of this article. The rules shall be
designed to assure a simple, expeditious and inexpensive
consideration of claims. The rules shall permit a claimant to
appear in his own behalf or be represented by counsel and provide for interests of the state to be represented by the attorney
general in any hearing under this section at no additional cost to
the fund or the state.
Under its rules, the court shall not be bound by the usual
common law or statutory rules of evidence. The court may accept
and weigh, in accordance with its evidential value, any information
that will assist the court in determining the factual basis of a
claim.
Note: The purpose of this bill is to increase the amount of awards
that victims may receive from the court of claims; and modify
certain procedures for review of claims by the court.
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