Senate Bill No. 490
(By Senators Minard, Sharpe, Ross, Helmick, Kessler, Fanning,
Deem and Walker)
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[Introduced February 10, 1999;
referred to the Committee on the Judiciary.]
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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 allowing the
division of workers' compensation to collect past due
premiums without payment of interest, late fees, etc., in
order to promote the collection of unpaid premiums.
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; power of division of workers' compensation to waive interest and
penalties to collect back premiums; 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 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 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, the
division shall be entitled to recover its attorneys' fees and
costs of action from the employer.
In addition to the foregoing, the commissioner of the bureau
of employment programs may elect to waive all penalties and late
fees due under this article for an employer in default if that employer makes full and complete payment of all past and current
premiums due. Any waiver given under this subsection is fully
contingent upon the employer first making full payment of any
past-due and current premiums.
(b) In addition to the foregoing provisions of this section,
any payment, interest and penalty thereon due and unpaid under
this chapter, unless waived pursuant to subsection(a), 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 shall 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 lien 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 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 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 likewise distrain in the name of
the state before such delinquency occurs. For such 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 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 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 delinquent employer to file a bond in the form prescribed by
the commissioner with satisfactory surety in an amount not less
than fifty percent more than the payments, interest and penalties
due.
NOTE: The purpose of this bill is to give the commissioner
the power to waive late penalties and fees in exchange for the
full payment of past due premiums of a given employer.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.