H. B. 2800

(By Delegates Hrutkay, Amores, Pethtel,

Pino, Stemple and Webb)



[Introduced January 30, 2003; referred to the

Committee on the Judiciary.]
A BILL to amend and reenact section seven, article seven, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to compromise and settlement of claims for death by wrongful act; right of personal representative to settle wrongful death claims; filing of verified petition or motion giving notice of settlement; contents of petition or motion; service; resolution of agreed-upon distributions without hearing; approval of settlement and release of liability subject to judicial determination of appropriate distribution of settlement proceeds; hearing; distribution.

Be it enacted by the Legislature of West Virginia:
That section seven, article seven, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-7. Compromise and settlement of claims for death by wrongful act.
(a) The personal representative of the deceased may compromise and settle any claim to damages arising under section five of this article before or after a civil action is brought. What is received by the personal representative under the compromise shall be treated as if recovered by him in an action under the section last mentioned. When the judge acts in vacation, he shall return all the papers in the case, and orders made therein, to the clerk's office of such court. The clerk shall file the papers in his office as soon as received, and forthwith enter the order in the order book on the law side of the court. Such orders, and all the proceedings in vacation, shall have the same force and effect as if made or had in term. Upon approval of the compromise, the court shall apportion and distribute such damages, or the compromise agreed upon, after making provisions for those expenditures, if any, specified in subdivision (2), subsection (c), section six of this article, in the same manner as in the cases tried without a jury.
(b) In the event of a compromise and settlement of claims, the personal representative shall file a verified motion with the circuit court of the county in which the action was brought or, if no complaint has been filed, a verified petition with the circuit court of the county in which the decedent resided at the time of his or her death, giving notice of the settlement and requesting approval of the settlement and distribution of the settlement proceeds. The motion or petition shall include the names and addresses of the parties to the settlement and of all individuals who have a right to distribution of any part of the settlement pursuant to section six-(b) of this article and shall state whether these potential beneficiaries are in agreement as to the settlement and any proposed distribution of the settlement proceeds.
(c) The personal representative shall serve a copy of the motion or petition on all parties to the settlement and on all potential beneficiaries under section six-(b) of this article. Notice is sufficient if sent by certified mail, return receipt requested, to the last known address of the party or potential beneficiary or to the natural or legal guardian of a party or potential beneficiary. If there is no last known address, notice is sufficient if it is published as a Class I legal advertisement in the county in which the civil action was brought, or, if no civil action has been filed, in the county where the decedent resided at the time of his or her death. Any potential beneficiary under section six-(b) of this article who does not live in the county where the decedent resided at the time of his or her death may file with the fiduciary supervisor assigned to the administration of the decedent's estate a written notice of his or her address for purposes of service.
(d) If the parties to the settlement and the potential beneficiaries under section six-(b) of this article are in agreement as to the settlement and appropriate distribution of the settlement proceeds, the personal representative shall obtain the written consent to such settlement and proposed distribution of each party or potential beneficiary. The consent of the potential beneficiaries shall be append to the motion or petition or otherwise filed with the court. In these circumstances, the circuit court may approve the settlement and proposed distribution without a hearing. Upon approval, the court shall authorize the personal representative to enter into a full and complete release of the adverse settling party or parties.
(e) If the parties and the potential beneficiaries agree to the compromise or settlement, but are not in agreement as to the appropriate distribution of the settlement proceeds, or if the written consent of all parties and potential beneficiaries is not appended to the motion or petition, the court shall set a date and time for a hearing on the matter. Not later than ten days prior to the hearing, the personal representative shall send written notice of the hearing to all parties to the settlement and to all potential beneficiaries in accordance with the provisions of subdivision (c) of this section.
(f) At the hearing, the court may, upon motion or agreement of the parties, approve the settlement and authorize the personal representative to execute a proper settlement agreement, release of liability and dismissal order, reserving decision as to the appropriate distribution of the settlement proceeds. Thereafter, the court shall proceed to hearing on the question of the appropriate distribution of the settlement proceeds. Every potential beneficiary may appear at the hearing and present evidence as to why he or she should receive a share of the settlement proceeds and in what proportion. In deciding the appropriate distribution to each beneficiary, the court shall consider the following classes of beneficiaries in the following order of preference:
(1) those beneficiaries who were financially dependent on the

decedent, if any, at the time of the decedent's death;
(2) the spouse and/or children, if any,

(3) where there is no spouse or children, then to parents, if

any,
(4) if there are no parents, then to grandparents, grandchildren, brothers and sisters.
For good cause shown, however, the court may deviate from the order of preference and award such sums to the beneficiaries as justice requires and the circumstances warrant: Provided, that distribution shall not be made to artificial persons or business entities. In determining the distribution to each beneficiary, the court shall consider all of the reasonable items of damage set forth in section six of this article, and whether and to what extent each beneficiary is entitled to damages under each category of damages.
(f) Nothing in this section is intended to supercede any other requirements of this code with regard to approval of settlements of claims of minors. The provisions of article ten, chapter forty- four of this Code shall apply to any settlement of the claims of a minor who is a potential beneficiary under section six-(b) of this article at the time the settlement and distribution are final.

NOTE: The purpose of this bill is to create an efficient and expeditious procedure for finalizing wrongful death settlements and resolving conflicting claims as to the appropriate distribution of wrongful death settlement proceeds among potential statutory beneficiaries.

 This bill was recommended for introduction and passage by the Joint Standing Committee on the Judiciary.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.