Senate Bill No. 767
(By Senators Wooton, Ball, Dittmar, Kessler, Ross and Snyder)
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[Originating in the Committee on the Judiciary;
reported March 4, 1998.]
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A BILL to amend and reenact section fourteen, article ten, chapter
forty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to judicial approval
of a settlement of a civil action involving injuries to a
child.
Be it enacted by the Legislature of West Virginia:
That section fourteen, article ten, chapter forty-four of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 10. GUARDIANS AND WARDS GENERALLY.
§44-10-14. Authority of guardian to settle claim of ward for
injuries to himself or his property; procedure.
In any case where an infant is injured in his person or his
property by another, the legal guardian of such infant may
negotiate with the person inflicting such injury for the settlement
of any claim for damages therefor. But the guardian shall, when
proceeding under this section, in all cases, before making final
settlement, file his petition in equity with the circuit court of the county, or judge thereof in vacation, in which he was
appointed, for permission to settle such claim, in which petition
he shall state the name and age of his ward, the nature and
character of the injury, and the facts relied upon by him to induce
the court or judge to approve such proposed settlement. The court,
or judge thereof in vacation, shall appoint a guardian ad litem for
the ward who shall answer the petition. Upon the hearing thereof,
the court or judge thereof in vacation, may grant or refuse the
petition by a proper order, as may seem just and proper. In case
the court or judge shall grant the petition, there may be included
in such order permission to the guardian to pay to his attorney
such amount in connection with the settlement of the claim as in
the discretion of the court or judge is reasonable and proper,
taking into consideration the amount to be paid as damages, the
necessities of the infant, the nature of the injury, the
probability of recovery in case of suit, the difficulties involved
in effecting the settlement, and such other matters as may properly
have a bearing on the reasonable compensation to be allowed such
attorney. In case the court or judge approves the prayer of the
petition, the guardian may be authorized to settle and receive the
amount of the settlement, and to execute to the tort-feasor a
release therefor. Before so doing he shall execute a bond in an
amount equal to the approved settlement, unless he be already under
bond sufficient for the purpose, with surety or sureties approved
by the clerk of said court, conditioned to account for and pay over the amount of the approved settlement as required by law, which
bond shall be filed and recorded by the clerk.
The release to the tort-feasor may be in form or effect as
follows:
I, _______________, the guardian of ______________, in
consideration of the sum of $_________, and under authority of an
order of the circuit court of __________ county, entered on the
_________ day of _________, 19_____, do hereby release
______________ from all claims and demands on account of injuries
inflicted upon my said ward (or my said ward's property, as the
case may be) by said _____________ on the _______ day of
__________, 19_____, at _________ (here state the place or places).
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Guardian of
After receiving such release from the guardian of an infant
who has been injured in his person or in his property by such
person, the tort-feasor shall be forever acquit therefor.
Nothing in this section contained shall be construed as
preventing any tort-feasor from settling any such claim in any of
the modes now recognized by law.
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(NOTE: The purpose of this bill is to require settlements of
civil actions involving injuries to children to be reviewed by a
guardian ad litem and approved by a court, even when no proceedings
have been instituted in circuit court.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)