Introduced Version
Senate Bill 464 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 464
(By Senators Unger, Prezioso, Redd, Boley, Snyder, Ball,
Anderson, Walker, McCabe, Plymale, Bailey and Mitchell)
____________
[Introduced February 8, 1999;
referred to the Committee on Finance.]
A BILL to amend and reenact section three, article two-a, chapter
fourteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to including "lost
scholarship" in the definitions used in the West Virginia
crime victims compensation act.
Be it enacted by the Legislature of West Virginia:
That section three, article two-a, chapter fourteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted
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, 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 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. For purposes of this article, the term
"economic loss" includes a lost scholarship as defined in this
section.
(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
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.
(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
postsecondary 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.
NOTE: The purpose of this bill is to
include "lost
scholarship" in the definitions used in the West Virginia Crime
Victims Compensation Act.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.