H. B. 2106
(By Delegate Staton)
[Introduced
February 14, 2001
; referred to the
Committee on the Judiciary.]
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 mentally impaired 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, 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. 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 the guardian 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 the fees is 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 any other
matters that 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
mentally impaired persons and disbursement of funds
arising therefrom.
In any action or suit wherein an infant or insane mentally
impaired 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 mentally impaired person, if such compromise
shall be deemed to be to is in the best interest of the infant or insane mentally impaired 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 mentally impaired 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 mentally
impaired person. And the court, or judge before approving such the
compromise, shall, in order to determine whether to approve or
disapprove the compromise, here 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 mentally impaired 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.
NOTE: The purpose of this bill is provide a new procedure for
the settlement and compromise of actions and suits on behalf of
infants and mentally impaired persons.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.