COMMITTEE SUBSTITUTE
FOR
H. B. 2800
(By Delegates Hrutkay, Amores, Pethtel,
Pino, Stemple and Webb)
(Originating in the Committee on the Judiciary)
[February 27, 2003]
A BILL to amend and reenact sections six and seven, article seven,
chapter fifty-five of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating to trial by
court or jury and compromise and settlement of claims for
death by wrongful act; listing potential beneficiaries if suit
is tried before the court or jury; 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; and
distribution.
Be it enacted by the Legislature of West Virginia:
That sections six and seven, article seven, chapter fifty-five
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-6. By whom action for wrongful death to be brought; amount
and distribution of damages; period of limitation.
(a) Every such action shall be brought by and in the name of
the personal representative of such deceased person who has been
duly appointed in this state, or in any other state, territory or
district of the United States, or in any foreign country, and the
amount recovered in every such action shall be recovered by said
personal representative and be distributed in accordance herewith.
If the personal representative was duly appointed in another state,
territory or district of the United States, or in any foreign
country, such personal representative shall, at the time of filing
of the complaint, post bond with a corporate surety thereon
authorized to do business in this state, in the sum of one hundred
dollars, conditioned that such personal representative shall pay
all costs adjudged against him or her and that he or she shall
comply with the provisions of this section. The circuit court may
increase or decrease the amount of said bond, for good cause.
(b) In every such action for wrongful death, the jury, or in
a case tried without a jury, the court, may award such damages as
to it may seem fair and just, and, may direct in what proportions
the damages shall be distributed to the surviving spouse and
children, including adopted children and stepchildren, brothers,
sisters, parents, grandparents, grandchildren and any persons who were financially dependent upon the decedent at the time of his or
her death or would otherwise be equitably entitled to share in such
distribution after making provision for those expenditures, if any,
specified in subdivision (2), subsection (c) of this section. If
there are no such survivors, then the damages shall be distributed
in accordance with the decedent's will or, if there is no will, in
accordance with the laws of descent and distribution as set forth
in chapter forty-two of this code. If the jury renders only a
general verdict on damages and does not provide for the
distribution thereof, the court shall distribute the damages in
accordance with the provisions of this subsection.
(c) (1) The verdict of the jury shall include, but may not be
limited to, damages for the following: (A) Sorrow, mental anguish,
and solace which may include society, companionship, comfort,
guidance, kindly offices and advice of the decedent; (B)
compensation for reasonably expected loss of (i) income of the
decedent, and (ii) services, protection, care and assistance
provided by the decedent; (C) expenses for the care, treatment and
hospitalization of the decedent incident to the injury resulting in
death; and (D) reasonable funeral expenses.
(2) In its verdict the jury shall set forth separately the
amount of damages, if any, awarded by it for reasonable funeral,
hospital, medical and said other expenses incurred as a result of
the wrongful act, neglect or default of the defendant or defendants which resulted in death, and any such amount recovered for such
expenses shall be so expended by the personal representative.
(d) Every such action shall be commenced within two years
after the death of such deceased person, subject to the provisions
of section eighteen, article two, chapter fifty-five. The
provisions of this section shall not apply to actions brought for
the death of any person occurring prior to the first day of July,
one thousand nine hundred eighty-eight.
§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 appended 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.
(g) 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.
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.