Senate Bill No. 463
(By Senator Tomblin, Mr. President)
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[Introduced March 24, 1997; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact sections three, four and fourteen,
article two-a, chapter fourteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said article by adding thereto a new
section, designated section thirty, all relating to the
court of claims; compensation awards to victims of crimes;
specifying that restitution actually paid to crime victims
pursuant to order of the circuit court be considered a
collateral source in proceedings before the court of claims;
defining "criminally injurious conduct" to include acts of
terrorism committed against residents of this state while
outside of the United States; increasing the allowable
expense related to funeral, cremation or burial from three
thousand dollars to four thousand dollars; specifically authorizing the creation of an account with the state board
of investments for the purpose of investing surplus funds
from the crime victims compensation fund; authorizing the
court of claims to retain part-time, hourly legal counsel to
defend the fund in claimants' appeals from initial orders of
the court of claims and to perform necessary legal work
under the direction of the clerk of the court; authorizing
the court of claims to fix the hourly compensation thereof;
and authorizing payment of awards to crime victims on order
of a judge or the clerk of the court of claims.
Be it enacted by the Legislature of West Virginia:
That sections three, four 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; and
that said article be further amended by adding thereto a new
section, designated section thirty, 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 or 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 includes an act of terrorism, as defined in 18 U.S.C.
2331, which is committed against a resident of this state while
outside of the United States. 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
supplied to
himself or herself
supplied shall be taken into account. 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
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 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 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 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-4. Creation of crime victims compensation fund.
(a) Every person within the state who is convicted of or
pleads guilty to a misdemeanor offense, other than a traffic
offense that is not a moving violation, in any magistrate court
or circuit court, shall pay the sum of ten dollars as costs in the case, in addition to any other court costs that the court is
required by law to impose upon the convicted person. Every
person within the state who is convicted of or pleads guilty to
a misdemeanor offense, other than a traffic offense that is not
a moving violation, in any municipal court, shall pay the sum of
eight dollars as costs in the case, in addition to any other
court costs that the court is required by law to impose upon the
convicted person. In addition to any other costs previously
specified, every person within the state who is convicted of or
pleads guilty to a violation of section two, article five,
chapter seventeen-c of this code, shall pay a fee in the amount
of twenty percent of any fine imposed under said section. This
shall be in addition to any other court costs required by this
section or which may be required by law.
(b) The clerk of the circuit court, magistrate court or
municipal court wherein the additional costs are imposed under
the provisions of subsection (a) of this section shall, on or
before the last day of each month, transmit all costs received
under this article to the state treasurer for deposit in the
state treasury to the credit of a special revenue fund to be
known as the "Crime Victims Compensation Fund", which is hereby
created. All moneys heretofore collected and received under the
prior enactment or reenactments of this article and deposited or
to be deposited in the "Crime Victims Reparation Fund" are hereby transferred to the crime victims compensation fund, and the
treasurer shall deposit the moneys in the state treasury. All
moneys collected and received under this article and paid into
the state treasury and credited to the crime victims compensation
fund in the manner prescribed in section two, article two,
chapter twelve of this code, shall be kept and maintained for the
specific purposes of this article, and
shall may not be treated
by the auditor and treasurer as part of the general revenue of
the state.
(c) Moneys in the crime victims compensation fund shall be
made available for the payment of the costs of administration of
this article in accordance with the budget of the court approved
therefor:
Provided, That the services of the office of the
attorney general, as may be required or authorized by any of the
provisions of this article, shall be rendered without charge to
the fund.
(d) Any moneys in the crime victims compensation fund may be
deposited in the West Virginia consolidated investment pool with
the West Virginia state board of investments, with the interest
income thereon considered a proper credit to the crime victims
compensation fund.
§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 clerk 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 clerk 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 clerk 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 the clerk, 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 the clerk shall may not approve
an award of compensation if the injury occurred while the victim
was confined in any state, county or city jail, prison, private
prison or correctional facility.
(f) After reaching a decision to approve an award of
compensation, but prior to before announcing the approval, the
judge or commissioner clerk 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
clerk 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 all
claimants because of the death of the a victim shall may not
exceed thirty 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 be appointed pursuant
to the provisions of article ten, chapter forty-four of this code
to manage the minor's estate.
§14-2A-30. Employment of legal counsel.
The court is hereby authorized to retain counsel on a part- time, hourly basis to represent the fund and defend it in any
claimant's appeal from the court's initial order. Counsel
retained pursuant to this section shall act under the direction
of the clerk of the court, if necessary, to review claims, direct
additional investigation by the claim investigator, subpoena
witnesses or documents on behalf of the fund, defend the fund in
proceedings before the court, and prepare any briefs or legal memoranda required by the court. The hourly rate of compensation
for any counsel retained pursuant to this section shall be
determined by the court.
NOTE: The purpose of this bill is to conform to federal
requirements for crime victims compensation programs with respect
to terrorist acts committed against state residents while outside
of the United States; authorize the creation of an account with
the State Board of Investments for investing surplus funds from
the Crime Victims Compensation Fund; provide that restitution
actually paid by convicted persons to crime victims pursuant to
an order of the circuit court be considered a collateral source
in proceedings before the Court of Claims; increase the allowable
expense for funeral, burial and cremation costs from $3,000 to
$4,000; authorize the Court of Claims to retain part-time legal
counsel to defend the Crime Victims Compensation Fund, under
direction of the Clerk of the Court; and to authorize the payment
of awards to crime victims upon order of a judge or the Clerk of
the Court of Claims.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§14-2A-30 is new; therefore, strike-throughs and
underscoring have been omitted.
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