H. B. 2038
(By Delegate Walters)
[Introduced January 14, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section six, article seven, chapter
fifty-five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to actions and
suits; actions for wrongful death; amount and distribution
of damages; and period of limitation.
Be it enacted by the Legislature of West Virginia:
That section six, article seven, chapter fifty-five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, to be amended and reenacted to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-6. By whom action for wrongful death to be brought; amount
and distribution of damages; period of limitation.
(a) Every such action shall be brought by and in the name of
the personal representative of
such the deceased person who has
been duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign
country, and the amount recovered in every such action shall be
recovered by said personal representative and be distributed in
accordance herewith. If the personal representative was duly
appointed in another state, territory or district of the United
States, or in any foreign country, such the personal
representative shall, at the time of filing of the complaint,
post bond with a corporate surety thereon authorized to do
business in this state, in the sum of one hundred dollars,
conditioned that such the personal representative shall pay all
costs adjudged against him or her and that he or she shall comply
with the provisions of this section. The circuit court may
increase or decrease the amount of said bond, for good cause.
(b) In every such action for wrongful death, the jury, or in
a case tried without a jury, the court, may award
such damages as
to it may seem fair and just, and, may direct in what proportions
the damages shall be distributed to the surviving spouse and
children, including adopted children and stepchildren, brothers,
sisters, parents and any persons who were financially dependent
upon the decedent at the time of his or her death or would
otherwise be equitably entitled to share in such distribution
after making provision for those expenditures, if any, specified
in subdivision (2), subsection (c) of this section. If there are
no such survivors, then the damages shall be distributed in accordance with the decedent's will or, if there is no will, in
accordance with the laws of descent and distribution as set forth
in chapter forty-two of this code. If the jury renders only a
general verdict on damages and does not provide for the
distribution thereof, the court shall distribute the damages in
accordance with the provisions of this subsection.
(c) (1) The verdict of the jury shall include, but may not
be limited to, damages for the following: (A) Sorrow, mental
anguish, and solace which may include society, companionship,
comfort, guidance, kindly offices and advice of the decedent; (B)
compensation for reasonably expected loss of: (i) Income of the
decedent; and (ii) services, protection, care and assistance
provided by the decedent; (C) expenses for the care, treatment
and hospitalization of the decedent incident to the injury
resulting in death; and (D) reasonable funeral expenses.
(2) In its verdict the jury shall set forth separately the
amount of damages, if any, awarded by it for reasonable funeral,
hospital, medical and said other expenses incurred as a result
of the wrongful act, neglect or default of the defendant or
defendants which resulted in death, and any
such amount recovered
for such expenses shall be so expended by the personal
such action shall be commenced within two years
after the death of such deceased person, subject to the provisions of section eighteen, article two, chapter fifty-five.
The provisions of this section shall not apply to actions brought
for the death of any person occurring prior to the first day of
July, one thousand nine hundred eighty-eight.
NOTE: The purpose of this bill is to provide for the
distribution of awards for damages in wrongful death actions
either in accordance with the decedent's will, or if there is no
will, in accordance with the laws of descent and distribution in
W. Va. Code §§ 42-1-1 et seq.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.