H. B. 4031
(By Delegate Staton)
[Introduced January 13, 2000; referred to the
Committee on the Judiciary.]
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; and to amend
and reenact section four, article ten, chapter fifty-six of
said code, all relating to compromise of actions and suits
in behalf of infants and insane persons.
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; and that section four,
article ten, chapter fifty-six of said code be amended and
reenacted, all to read as follows:
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
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 the infant's
person or his the infant's 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,
before making a final settlement where net proceeds to the infant
are in excess of ten thousand dollars, file his a petition in
equity with the circuit court of the county, or judge thereof in
vacation, in which he the guardian was appointed, for permission
to settle such claim, in which petition he the guardian shall
state the name and age of his the ward, the nature and character
of the injury, and the facts relied upon by him the guardian 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 the guardian's 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 the guardian shall execute a bond in an amount
equal to the approved settlement, unless he the guardian be
already under bond sufficient for the purpose, with surety or
sureties approved by the county 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).
.............
Guardian of
After receiving such release from the guardian of an infant
who has been injured in his the infant's person or in his the
infant's property by such person, the tort-feasor shall be
forever acquit therefor.
If the legal guardian of an infant negotiates a settlement
where net proceeds to the infant are ten thousand dollars or
less, the guardian is hereby authorized to settle and receive the
amount of the settlement, and to execute to the tort-feasor a
release therefor. Before so doing the guardian shall execute a
bond in an amount equal to the approved settlement, unless the
guardian be already under bond sufficient for the purpose, with
surety or sureties approved by the county clerk, 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 and remain in effect until the injured infant reaches
twenty years of age.
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.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 10. MISCELLANEOUS PROVISIONS RELATING TO PROCEDURE.
§56-10-4. Compromise of actions and suits in behalf of infants
and insane persons and disbursement of funds
arising therefrom.
In any action or suit wherein an infant or insane person is
a party, the court in which the same is pending, or the judge
thereof in vacation, shall have the power to approve and confirm
a compromise of the matters in controversy on behalf of such
infant or insane person, if such compromise shall be deemed to be
to in the best interest of the infant or insane person. Such
approval or confirmation shall never be granted except upon
written application therefor by the guardian, committee, curator
or next friend of the infant or insane person, setting forth
under oath all the facts of the case and the reasons why such
compromise is deemed to be for in the best interest of the infant
or insane person. And the court or judge, before approving such
compromise, shall, in order to determine whether to approve or
disapprove the compromise, hear the testimony of witnesses
relating to the subject matter of the compromise and cause said
testimony to be reduced to writing and filed with the papers in
the case. The court or judge, upon approving and confirming such
compromise, shall enter judgment or decree accordingly. Such
judgment or decree shall bind the respective parties thereto,
including such infant or insane person, with like force and
effect, and shall be subject to review, modification or reversal to the same extent only, as if it were a consent judgment or
decree, entered under similar circumstances, in a case in which
all the parties were adults and sane. In any such compromise
wherein the amount paid to the guardian or committee does not
exceed the sum of ten thousand dollars, the court or judge
approving and confirming the compromise and entering judgment or
decree thereon may, in its or his discretion, dispense with or
withdraw a reference to a fiduciary commissioner as to said
compromise, authorize the disbursement of the fund so created by
the compromise and may discharge the guardian or committee and
the surety on his bond as to the proceeding then pending in the
circuit court, and in all such cases a certified copy of the
order of the court or judge, as the case may be, shall be
recorded in the office of the clerk of the county commission
wherein the guardian or committee was appointed.
NOTE: The purpose of this bill is to require court approval
for infant settlements in excess of ten thousand dollars and to
make certain clarifying changes relating to court approval of the
compromise of actions involving infants and insane persons.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.