H. B. 2148
(By Mr. Speaker, Mr. Kiss, and Delegates Michael and Martin)
[Introduced February 18, 1997; referred to the Committee on
the Judiciary then Finance.]
A BILL to amend and reenact sections three and four, 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; including
restitution as a collateral source of income; increasing the
amount awarded for death expenses; including acts of terrorism
in definition of criminally injurious conduct; and allowing
compensation fund moneys to be deposited in the state
consolidated investment account.
Be it enacted by the legislature of West Virginia:
That sections three and four, 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-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, except 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.
(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 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
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 fundpool with
the West Virginia state board of investments as establishedprovided in
article one ocf chapter twelve of this code, with the interest
income a proper credit to the crimes victims compensation fund.
Note: The purpose of this bill is to include restitution as a
collateral source, increase the maximum allowable expenses for
funeral, cremation, and burial from $3,000.00 to $4,000.00, to
amend the definition of criminally injurious conduct to include an
act of terrorism. and to allow moneys in the crime victims
compensation fund to be deposited with the West Virginia
Consolidated investment fundpool.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.