COMMITTEE SUBSTITUTE

FOR

H. B. 4031


(By Delegate Staton)

(Originating in the Committee on the Judiciary)


[February 11, 2000]


A BILL to amend and reenact sections fourteen and fifteen, 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 sections fourteen and fifteen, 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 person or 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, 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).
 ...................................
 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.
If a minor suffers injury to his or her person or property by another person, then prior to bringing an action for damages, the legal guardian of the minor may negotiate with the person causing the injury for the settlement of any claim for damages. But if the gross amount of the proposed settlement is more than ten thousand dollars, the guardian shall file a petition with the circuit court of the county in which he was appointed, requesting permission to settle the claim. In the petition, the guardian shall state the name and age of the ward, the nature and character of the injury, and the facts relied upon by the guardian to induce the court or judge to approve the proposed settlement. The court shall appoint a guardian ad litem to answer the petition for the ward. After hearing, the court may grant or refuse the relief petitioned for. If the court grants the relief, the order may direct the guardian to pay reasonable attorney's fees in connection with the settlement of the claim. The amount of such fees are in the discretion of the court, after 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 the guardian's attorney. If the court grants the relief, the guardian may be authorized to settle and receive the amount of the settlement, and to execute a release to the payor party. Before executing a release, the guardian shall execute a bond in an amount equal to the approved settlement, unless the guardian is already under bond sufficient for the purpose. A bond must have surety or sureties approved by the clerk of the court, and be conditioned to account for and pay over the amount of the approved settlement as required by law. The clerk shall file and record the bond.
The release 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 .........., ......, 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 .........., ........, at .......... (here state the place or places).
...................................
Guardian of

A release under this section is a discharge of the claim or obligation brought forth by the guardian on behalf of his or her ward.
Nothing contained in this section shall be construed as preventing any person against whom a claim is brought from settling the claim in any of the modes now recognized by law.
§44-10-15. Disbursement of funds of minor wards.
In any such settlement, pursuant to the next preceding section under section fourteen of this article, wherein the net amount paid the guardian does not exceed the sum of one ten thousand dollars, the court or judge approving the settlement may, in its or his discretion, dispense with, or withdraw a reference to a fiduciary commissioner, authorize the disbursement of the fund so created by the settlement and may discharge the guardian and the surety on his bond. 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 was appointed.
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 is 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 the 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 the testimony to be reduced to writing and filed with the papers in the case. The court or judge, upon approving and confirming such the compromise, shall enter judgment or decree accordingly. Such judgment or decree shall bind the respective parties thereto, including such the 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 net 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 the 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 In 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.