H. B. 2334
(By Delegate Trump)
[Introduced January 21, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend article two-a, chapter fourteen of the code of West
Virginia, one thousand nine hundred and thirty-one, as
amended, by amending and reenacting section three thereof,
relating generally to the definitions used in the West
Virginia Crime Victims Compensation Act.
Be it enacted by the Legislature of the State of West Virginia:
That section three, article two-a, chapter fourteen of the
code of West Virginia, one thousand nine hundred and thirty-one, as
amended, be amended and re-enacted
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, 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. For purposes of this article, the term "economic loss" includes a lost scholarship as defined in this section.
(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
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.
(m) "Lost scholarship" means a scholarship, academic award,
stipend, or other monetary scholastic assistance which:
(1)had been awarded or conferred upon a victim;
(2)in conjunction with a post-secondary school educational
program; and,
(3) which scholarship, academic award, stipend, or other monetary
scholastic assistance the victim is unable to receive or use, in
whole or in part, due to injuries received from criminally
injurious conduct.