Increasing the allowable expenses to be paid to victims by the Crime Victim Compensation Fund
ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2818
(By
Delegates Manchin, Caputo, Fleischauer, Fragale, Guthrie,
Poore, Skaff, Doyle and Stowers
)
[Passed March 10, 2011; in effect ninety days from passage.]
AN ACT to amend and reenact §14-2A-3 of the Code of West Virginia,
1931, as amended, relating to increasing the allowable expense
under the Crime Victims Award Program; increasing the amount
that may be paid for the clean-up of real property damage by
a methamphetamine laboratory; increasing allowable
reimbursement for funeral expenses; and making technical
revisions.
Be it enacted by the Legislature of West Virginia:
That §14-2A-3 of the Code of West Virginia, 1931, as amended,
be amended to read as follows:
ARTICLE 2A. COMPENSATION AWARDS TO VICTIMS OF CRIMES.
§14-2A-3. Definitions.
As used in this article, the term:
(a) "Claimant" means any of the following persons, whether
residents or nonresidents of this state, who claim an award of compensation under this article:
(1) A victim, except the term "victim" does not include a
nonresident of this state where the criminally injurious act did
not occur in this state;
(2) A dependent, spouse or minor child of a deceased victim
or, if the deceased victim is a minor, the parents, legal guardians
and siblings of the victim;
(3) A third person, other than a collateral source, who
legally assumes or voluntarily pays the obligations of a victim or
a victim's dependent when the obligations are incurred as a result
of the criminally injurious conduct that is the subject of the
claim;
(4) A person who is authorized to act on behalf of a victim,
dependent or a third person who is not a collateral source
including, but not limited to, assignees, persons holding power of
attorney or others who hold authority to make or submit claims in
place of or on behalf of a victim, a dependent or third person who
is not a collateral source and if the victim, dependent or third
person who is not a collateral source is a minor or other legally
incompetent person, their duly qualified fiduciary;
(5) A person who is a secondary victim in need of mental
health counseling due to the person's exposure to the crime
committed whose award may not exceed $1,000; and
(6) A person who owns real property damaged by the operation
of a methamphetamine laboratory without the knowledge or consent of the owner of the real property.
(b) "Collateral source" means a source of benefits or
advantages for economic loss otherwise compensable that the victim
or claimant has received or that is readily available to him or her
from any of the following sources:
(1) The offender, including restitution received from the
offender pursuant to an order by a court sentencing the offender or
placing him or her on probation following a conviction in a
criminal case arising from the criminally injurious act for which
a claim for compensation is made;
(2) The government of the United States or its agencies, a
state or its political subdivisions or an instrumentality of two or
more states;
(3) Social Security, Medicare and Medicaid;
(4) State-required, temporary, nonoccupational disability
insurance or other disability insurance;
(5) Workers' compensation;
(6) Wage continuation programs of an employer;
(7) Proceeds of a contract of insurance payable to the victim
or claimant for loss that was sustained because of the criminally
injurious conduct;
(8) A contract providing prepaid hospital and other health
care services or benefits for disability; and
(9) That portion of the proceeds of all contracts of insurance
payable to the claimant on account of the death of the victim which exceeds $25,000.
(c) "Criminally injurious conduct" means conduct that occurs
or is attempted in this state, or in any state not having a victim
compensation program, which poses a substantial threat of personal
injury or death and is punishable by fine, imprisonment or death or
would be so punishable but for a finding by a court of competent
jurisdiction that the person committing the crime lacked capacity.
Criminally injurious conduct also includes criminally injurious
conduct committed outside of the United States against a resident
of this state. Criminally injurious conduct does not include
conduct arising out of the ownership, maintenance or use of a motor
vehicle unless the person engaging in the conduct intended to cause
personal injury or death or committed negligent homicide, driving
under the influence of alcohol, controlled substances or drugs,
leaving the scene of the accident or reckless driving.
(d) "Dependent" means an individual who received over half of
his or her support from the victim. For the purpose of making this
determination there shall be taken into account the amount of
support received from the victim as compared to the entire amount
of support the individual received from all sources including
self-support. The term "support" includes, but is not limited to,
food, shelter, clothing, medical and dental care and education.
The term "dependent" includes a child of the victim born after his
or her death.
(e) "Economic loss" means economic detriment consisting only of allowable expense, work loss and replacement services loss. If
criminally injurious conduct causes death, economic loss includes
a dependent's economic loss and a dependent's replacement services
loss. Noneconomic detriment is not economic loss, however, economic
loss may be caused by pain and suffering or physical impairment.
For purposes of this article, the term "economic loss" includes a
lost scholarship as defined in this section.
(f) "Allowable expense" includes the following:
(1) Reasonable charges incurred or to be incurred for
reasonably needed products, services and accommodations including
those for medical care, mental health counseling, prosthetic
devices, eye glasses, dentures, rehabilitation and other remedial
treatment and care but does not include that portion of a charge
for a room in a hospital, clinic, convalescent home, nursing home
or other institution engaged in providing nursing care and related
services which is in excess of a reasonable and customary charge
for semiprivate accommodations unless accommodations other than
semiprivate accommodations are medically required;
(2) A total charge not in excess of $10,000 for expenses in
any way related to funerals, cremations and burials;
(3) A charge, not to exceed $10,000, for cleanup of real
property damaged by a methamphetamine laboratory or a charge not to
exceed $1,000 for any other crime scene cleanup;
(4) Victim relocation costs not to exceed $2,000;
(5) Reasonable travel expenses not to exceed $1,000 for a claimant to attend court proceedings conducted for the prosecution
of the offender;
(6) Reasonable travel expenses for a claimant to return a
person who is a minor or incapacitated adult who has been
unlawfully removed from this state to another state or country if
the removal constitutes a crime under the laws of this state
which may not exceed $2,000 for expenses to another state or $3,000
to another country;
and
(7) Reasonable travel expenses for the transportation of a
victim to and from a medical facility.
(g) "Work loss" means loss of income from work that the
injured person would have performed if he or she had not been
injured and expenses reasonably incurred or to be incurred by him
or her to obtain services in lieu of those he or she would have
performed for income. "Work loss" is reduced by income from
substitute work actually performed or to be performed by him or her
or by income he or she would have earned in available appropriate
substitute work that he or she was capable of performing but
unreasonably failed to undertake. "Work loss" also includes loss
of income from work by the parent or legal guardian of a minor
victim who must miss work to take care of the minor victim.
(h) "Replacement services loss" means expenses reasonably
incurred or to be incurred in obtaining ordinary and necessary
services in lieu of those the injured person would have performed
for the benefit of himself or herself or his or her family if he or she had not been injured. "Replacement services loss" does not
include services an injured person would have performed to generate
income.
(i) "Dependent's economic loss" means loss after a victim's
death of contributions or things of economic value to his or her
dependents but does not include services they would have received
from the victim if he or she had not suffered the fatal injury.
This amount is reduced by expenses avoided by the dependent due to
the victim's death.
(j) "Dependent's replacement service loss" means loss
reasonably incurred or to be incurred by dependents after a
victim's death in obtaining ordinary and necessary services in lieu
of those the victim would have performed for their benefit if he or
she had not suffered the fatal injury. This amount is reduced by
expenses avoided due to the victim's death but which are not
already subtracted in calculating a dependent's economic loss.
(k) "Victim" means the following:
(1) A person who suffers personal injury or death as a result
of any one of the following:
(A) Criminally injurious conduct;
(B) The good faith effort of the person to prevent criminally
injurious conduct; or
(C) The good faith effort of the person to apprehend a person
that the injured person has observed engaging in criminally
injurious conduct or who the injured person has reasonable cause to believe has engaged in criminally injurious conduct immediately
prior to the attempted apprehension.
(2) The owner of real property damaged by the operation of a
methamphetamine laboratory which operation was without his or her
knowledge or consent.
(l) "Contributory misconduct" means any conduct of the
claimant or of the victim through whom the claimant claims an award
that is unlawful or intentionally tortious and that, without regard
to the conduct's proximity in time or space to the criminally
injurious conduct, has a causal relationship to the criminally
injurious conduct that is the basis of the claim and includes the
voluntary intoxication of the claimant, either by the consumption
of alcohol or the use of any controlled substance, when the
intoxication has a causal connection or relationship to the injury
sustained.
(m) "Lost scholarship" means a scholarship, academic award,
stipend or other monetary scholastic assistance which had been
awarded or conferred upon a victim in conjunction with a post-
secondary school educational program and which the victim is unable
to receive or use, in whole or in part, due to injuries received
from criminally injurious conduct.
