Senate Bill No. 409
(By Senators Rowe, Kessler,
Hunter, Ross, White, Helmick and Unger)
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[Introduced January 30, 2003;
referred to the Committee on the Judiciary.]
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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; and 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 and reenacted 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.