H. B. 4668
(By Delegate Martin)
[Introduced February 24, 2000; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two hundred one, article two,
chapter thirty-one-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend and
reenact section three hundred three, article three of said
chapter, all relating generally to the treatment of a legal
entity in the same way under the workers' compensation act as
under federal and state tax laws and regulations for the
purposes of determining coverage and election of coverage for
the benefits and protection of the article; and to provide for
the liability of managers and members and responsible persons
of a limited liability company for any default in the payment
of debts, obligations or liabilities of the company to the
workers' compensation division and the unemployment
compensation division of the bureau of employment programs.
Be it enacted by the Legislature of West Virginia:
That section two hundred one, article two, chapter
thirty-one-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and that
section three hundred three, article three of said chapter be
amended and reenacted, all to read as follows:
ARTICLE 2. ORGANIZATION.
§31B-2-201. Limited liability company as legal entity.
(a) A limited liability company is a legal entity distinct
from its members.
(b) A limited liability company shall be treated as a legal
entity in the same way as it is permitted or required to be treated
under the federal tax laws and regulations and state tax laws, as
a sole proprietorship, a partnership, an association or a
corporation for the purposes of workers' compensation coverage,
particularly, as to elections out of that coverage under the
provisions of chapter twenty-three of this code and the rules
promulgated thereunder.
ARTICLE 3. RELATIONS OF MEMBERS AND MANAGERS TO PERSONS DEALING
WITH LIMITED LIABILITY COMPANY.
§31B-3-303. Liability of members and managers.
(a) Except as otherwise provided in subsection subsections (c)
and (d) of this section, the debts, obligations and liabilities of
a limited liability company, whether arising in contract, tort or otherwise, are solely the debts, obligations and liabilities of the
company. A member or manager is not personally liable for a debt,
obligation or liability of the company solely by reason of being or
acting as a member or manager.
(b) The failure of a limited liability company to observe the
usual company formalities or requirements relating to the exercise
of its company powers or management of its business is not a ground
for imposing personal liability on the members or managers for
liabilities of the company.
(c) All or specified members of a limited liability company
are liable in their capacity as members for all or specified debts,
obligations or liabilities of the company if:
(1) A provision to that effect is contained in the articles of
organization; and
(2) A member so liable has consented in writing to the
adoption of the provision or to be bound by the provision.
(d) The managers, in a manager-managed company, and members,
in a member-managed company, are liable personally in their
capacity as managers or members as employers or responsible persons
for all debts, obligations or liabilities of the company in default
under the provisions of the workers' compensation act, chapter
twenty-three of this code, and the unemployment compensation act,
chapter twenty-one-a of this code, and the rules promulgated
thereunder: (1) If the member or manager participates in or willfully sanctions the failure to pay or; (2) if, in such
capacity, the manager or member is required to account for and
cause to be paid to the workers' compensation division any sums due
for premium tax, deposit, interest or penalty and such manager or
member willfully fails to account for and cause to be paid or
willfully attempts to evade or defect payment of such sums.
NOTE: The purpose of this bill is to make provisions for
treatment of a legal entity under the workers' compensation act in
the same manner as sole proprietorships, partnerships, associations
and corporations for coverage and elective coverage and to make
provisions for equal treatment of mangers and members and
responsible persons as are provided for employers which are sole
proprietors, partners, and association or corporation officers and
responsible persons under the workers' compensation and
unemployment compensation acts.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.