H. B. 2024
(By Delegate Linch)
[Introduced January 14, 1998
; referred to the
Committee on Finance then the Judiciary.]
A BILL to amend and reenact section five-a, article two, chapter twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to collection of
workers' compensation premium taxes from defaulting
employers; requiring the workers' compensation division to
commence civil actions and pursue other civil remedies to
collect delinquent premium taxes; providing for interest and
penalties; creating liens against defaulting employers and
purchasers of their property; providing for collection of
interest and penalties from defaulting employers involved in
state court receivership or insolvency proceedings;
requiring the secretary of state to withhold certificates of
dissolution and withdrawal from the state; authorizing
injunctive relief; and providing for bond, attorneys' fees
and costs.
Be it enacted by the Legislature of West Virginia:
That section five-a, article two, chapter twenty-three of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-5a. Collection of premiums from defaulting employers;
interest and penalties; civil remedies; creation and enforcement of lien against employer and purchaser; duty of secretary of state to register liens; distraint powers; insolvency proceedings; secretary of state to withhold certificates of dissolution; injunctive relief; bond; attorney fees and costs.
(a) The workers' compensation division in the name of the
state may shall commence a civil action against an employer who,
after due notice, defaults in any payment required by this
chapter. If judgment is against the employer, such the employer
shall pay the costs of the action. Civil action under this
section shall be given preference on the calendar of the court
over all other civil actions. Upon prevailing in any such civil
action
under this section, the division shall be entitled to recover its attorneys' fees and costs of action from the
employer.
(b) In addition to the foregoing provisions of this section,
any payment, interest and penalty thereon due and unpaid under
this chapter shall be a personal obligation of the employer
immediately due and owing to the division and shall, in addition
thereto, be a lien enforceable against all the property of the
employer: Provided, That no such lien created hereunder shall
may be enforceable as against a purchaser (including a lien
creditor) of real estate or personal property for a valuable
consideration without notice, unless docketed as provided in
section one, article ten-c, chapter thirty-eight of this code:
Provided, however, That such a lien created hereunder may be
enforced as other judgment liens are enforced through the
provisions of chapter thirty-eight of this code and the same
shall be deemed by the circuit court to be a judgment lien for
this purpose.
(c) In addition to all other civil remedies prescribed
herein, the division may shall in the name of the state, after
giving appropriate notice as required by due process, distrain
upon any personal property, including intangible property, of any
employer delinquent for any payment, interest and penalty
thereon. If the division has good reason to believe that such property of a delinquent employer or a substantial portion
thereof is about to be removed from the county in which it is
situated, upon giving appropriate notice, either before or after
the seizure, as is proper in the circumstances, the division may
shall likewise distrain in the name of the state before such any
delinquency occurs. For such that purpose, the division may
require the services of a sheriff of any county in the state in
levying such distress in the county in which the sheriff is an
officer and in which such personal property of a delinquent
employer is situated. A sheriff so collecting any payment,
interest and penalty thereon shall be entitled to such
compensation as is provided by law for his or her services in the
levy and enforcement of executions. Upon prevailing in any
distraint action, the division shall be entitled to recover its
attorneys' fees and costs of action from the employer.
(d) In case a business subject to the payments, interest and
penalties thereon imposed under this chapter shall be operated in
connection with a receivership or insolvency proceeding in any
state court in this state, the court under whose direction such
business is operated shall, by the entry of a proper order or
decree in the cause, make provisions, so far as the assets in
administration will permit, for the regular payment of such
payments, interest and penalties as the same become due.
(e) The secretary of state of this state shall withhold the issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do
business in this state, until notified by the division that all
payments, interest and penalties thereon against any such
corporation which is an employer under this chapter have been
paid or that provision satisfactory to the division has been made
for payment.
(f) In any case when an employer required to subscribe to
the fund defaults in payments of premium, premium deposits,
penalty or interest thereon, for as many as two calendar
quarters, which quarters need not be consecutive, and remains in
default after due notice, the division may shall bring action in
the circuit court of Kanawha county to enjoin such employer from
continuing to carry on the business in which such liability was
incurred. Provided, That The division may as an alternative to
this action require such permit any delinquent employer to file
a bond in the form prescribed by the commissioner division with
satisfactory surety in an amount not less than fifty percent more
than the payments, interest and penalties due, in order to
continue doing business.
NOTE: The purpose of this bill is to require the Workers'
Compensation Division to commence civil actions and pursue other
civil remedies to collect premium taxes from defaulting
employers. Present law gives the Division permission to pursue
civil actions and other civil remedies against defaulting
employers, but does not require it to do so.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.