H. B. 4045


(By Delegate Kiss)
[Introduced January 18, 1994; referred to the
Committee on the Judiciary.]




A BILL to amend article ten-a, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section sixteen, relating to the right of subrogation by the division of rehabilitation services; rules as to effect of subrogation.
Be it enacted by the Legislature of West Virginia:

That article ten-a, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section sixteen, to read as follows:
ARTICLE 10A. REHABILITATION SERVICES.

§ 18-10A-16. Right of subrogation by division of rehabilitation services; rules as to effect of subrogation.

(a) If rehabilitation services are provided on behalf of a client or student because of any sickness, injury, disease, or disability, and another person is legally liable for such expense, the division may recover reimbursement for such expense from such other person, or from the recipient of such services if the client has been reimbursed by the other person. The division shall be legally subrogated to the rights of the client against the person so liable, but only to the extent of the reasonable value of the services paid and attributable to such sickness, injury, disease, or disability; and the director may compromise, settle, and execute a release of any such claim. The provisions of this subsection are subject to the provisions of subsection (b) of this section.

(b) Nothing in this section shall be construed so as to prevent the client of rehabilitation from maintaining an action for injuries received by him or her against any other person and from including therein, as part of the compensatory damages sought to be recovered, the amount or amounts of rehabilitation expenses.
If the action be tried by a jury, the jury shall not be informed as to the interest of the division of rehabilitation services, if any, and such fact shall not be disclosed to the jury at any time. The trial judge shall, upon entry of judgment on the verdict, direct that the amount equal to the amount of assistance given be withheld and paid over to the division of rehabilitation services. Irrespective of whether the case be terminated by judgment or by settlement without trial, from the amount required to be paid to the division of rehabilitation services there shall be deducted the attorney fees attributable to such amount in accordance with and in proportion to the fee arrangement made between the recipient and his or her attorney of record so that the division shall bear the pro rata portion of such attorney fees.
Nothing in this section precludes any person who has received rehabilitation services from settling any cause of action which he or she may have against another person and delivering to the division, from the proceeds of such settlement, the sums paid by the division for rehabilitation services. Any release given by a person who has received rehabilitation services to another person releasing such other person of liability with respect to any cause of action shall be binding upon the division if the person for whose benefit the release inures is unaware of, or has not been informed of, the interest of the division therein. If such other person is aware of or has been informed of the division's interest in the matter, it shall be the duty of the person to whose benefit the release inures to withhold so much of the settlement as may be necessary to reimburse the division to the extent of its interest in the settlement. If the division intends to maintain an action against any person for the collection of sums paid by it for rehabilitation services, it shall, prior thereto, notify the recipient of such assistance of its intent to bring an action at least thirty days prior to the bringing thereof. Such notice shall inform the recipient of the division's intent and shall advise the recipient of the right to bring such action in his or her own name in which he or she may include as a part of his or her claim the sums claimed by the division. Such notice shall also advise the recipient that unless the division is notified by him or her or his or her representative within thirty days of the date of the receipt of such notice, the division shall proceed to maintain an action to the extent of its interest in the name of the division. Any action subsequently brought by the division in its name as subrogee of the recipient shall not preclude the recipient from maintaining an action in his or her own name for the full amount previously awarded the division as hereinafter provided. To the extent provided herein and in no other event, unless specifically provided by law, shall any cause of action be divisible or capable of being split if such cause arises from the same transaction.



NOTE: The purpose of this bill is to provide the right of subrogation by the division of rehabilitation services and the rules as to effect of subrogation.

Section sixteen, article ten-a, chapter eighteen is new; therefore, strike-throughs and underscoring have been omitted.