HOUSE BILL NO. 2177 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE PERKINS.
5097H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 537.675, 537.684, 595.010, 595.040, and 595.045, RSMo, and to enact in lieu thereof five new sections relating to victims eligible to receive certain compensation, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 537.675, 537.684, 595.010, 595.040, and 595.045, RSMo, are 2 repealed and five new sections enacted in lieu thereof, to be known as sections 537.675, 3 537.684, 595.010, 595.040, and 595.045, to read as follows: 537.675. 1. As used in sections 537.675 through 537.693, the following terms mean: 2 (1) "Annual claims", that period of time commencing on the first day of January of 3 every year after December 31, 2002, and ending on the last day of that calendar year; 4 (2) "Commission", the labor and industrial relations commission; 5 (3) "Division", the division of workers' compensation; 6 (4) "Punitive damage final judgment", an award for punitive damages excluding 7 interest that is no longer subject to review by courts of this state or of the United States; 8 (5) "Uncompensated tort victim", a person who: 9 (a) Is a party in a personal injury or wrongful death lawsuit; or is a tort victim whose 10 claim against the tort-feasor has been settled for the policy limits of insurance covering the 11 liability of such tort-feasor and such policy limits are inadequate in light of the nature and 12 extent of damages due to the personal injury or wrongful death; 13 (b) Unless described in paragraph (a) of this subdivision:
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 2177 2
14 a. Has obtained a final monetary judgment in that lawsuit described in paragraph (a) 15 of this subdivision against a tort-feasor for personal injuries, or wrongful death in a case in 16 which all appeals are final; 17 b. Has exercised due diligence in enforcing the judgment; and 18 c. Has not collected the full amount of the judgment; 19 (c) Is not a corporation, company, partnership or other incorporated or unincorporated 20 commercial entity; 21 (d) Is not any entity claiming a right of subrogation; 22 (e) Was not on house arrest and was not confined in any federal, state, regional, 23 county or municipal jail, prison or other correctional facility at the time he or she sustained 24 injury from the tort-feasor; 25 (f) Has not pleaded guilty to or been found guilty of two or more felonies, where such 26 two or more felonies occurred within ten years of the occurrence of the tort in question, and 27 where either of such felonies involved a controlled substance or an act of violence; [and] 28 (g) Is a resident of the state of Missouri or sustained personal injury or death by a tort 29 which occurred in the state of Missouri; and 30 (h) Is a citizen of the United States, is a lawful permanent resident, or lawfully 31 holds a valid visa issued by the United States Department of State at the time of the 32 claim for dispensation. 33 2. There is created the "Tort Victims' Compensation Fund". Unexpended moneys in 34 the fund shall not lapse at the end of the biennium as provided in section 33.080. 35 3. Any party receiving a judgment final for purposes of appeal for punitive damages 36 in any case filed in any division of any circuit court of the state of Missouri shall notify the 37 attorney general of the state of Missouri of such award, except for actions claiming improper 38 health care pursuant to chapter 538. The state of Missouri shall have a lien for deposit into 39 the tort victims' compensation fund to the extent of fifty percent of the punitive damage final 40 judgment which shall attach in any such case after deducting attorney's fees and expenses. In 41 each case, the attorney general shall serve a lien notice by certified mail or registered mail 42 upon the party or parties against whom the state has a claim for collection of its share of a 43 punitive damage final judgment. On a petition filed by the state, the court, on written notice 44 to all interested parties, shall adjudicate the rights of the parties and enforce the lien. The lien 45 shall not be satisfied out of any recovery until the attorney's claim for fees and expenses is 46 paid. The state can file its lien in all cases where punitive damages are awarded upon the 47 entry of the judgment final for purposes of appeal. The state cannot enforce its lien until there 48 is a punitive damage final judgment. Cases resolved by arbitration, mediation or compromise 49 settlement prior to a punitive damage final judgment are exempt from the provisions of this 50 section. Nothing in this section shall hinder or in any way affect the right or ability of the HB 2177 3
51 parties to any claim or lawsuit to compromise or settle such claim or litigation on any terms 52 and at any time the parties desire. 53 4. The state of Missouri shall have no interest in or right to intervene at any stage of 54 any judicial proceeding pursuant to this section, except to enforce its lien rights as provided in 55 subsection 3 of this section. 56 5. Twenty-six percent of all payments deposited into the tort victims' compensation 57 fund and all interest accruing on the principal regardless of source or designation shall be 58 transferred to the basic civil legal services fund established in section 477.650. Moneys in the 59 tort victims' compensation fund shall not be used to pay any portion of a refund mandated by 60 Article X, Section 18 of the Constitution. 61 6. The department of labor and industrial relations shall verify compliance with 62 the eligibility requirements of any claimant under this section prior to authorizing 63 payment from the tort victims' compensation fund and shall deny any claim that fails to 64 meet such requirements. 537.684. 1. A claim for compensation may be filed by a person eligible for 2 compensation or, if the person is an incapacitated or disabled person, or a minor, by the 3 person's spouse, parent, conservator or guardian. 4 2. A claim shall be filed not later than two years after the judgment upon which it is 5 based becomes final and all appeals are final. If there is no judgment, claims must be filed 6 within time limits prescribed pursuant to section 516.120, except for cases resulting in death, 7 in which case claims must be filed within time limits prescribed pursuant to section 537.100. 8 3. Each claim shall be filed in person or by mail. The division shall investigate such 9 claim prior to the opening of formal proceedings. The director of the division shall assign an 10 administrative law judge, associate administrative law judge or legal advisor within the 11 division to hear any claim for compensation filed. The claimant shall be notified of the date 12 and time of any hearing on the claim. In determining the amount of compensation for which a 13 claimant is eligible, the division shall: 14 (1) Consider the facts stated on the application filed pursuant to section 537.678; 15 (2) Obtain a copy of the final judgment, if any, from the appropriate court; 16 (3) Determine the amount of the loss to the claimant, or the victim's survivors or 17 dependents; and 18 (4) If there is no final judgment, determine the degree or extent to which the victim's 19 acts or conduct provoked, incited or contributed to the injuries or death of the victim. 20 4. The claimant may present evidence and testimony on his or her own behalf or may 21 retain counsel. The administrative law judge may, as part of any award entered under 22 sections 537.675 to 537.693, determine and allow reasonable attorney's fees, which shall 23 not exceed fifteen percent of the amount awarded as compensation under sections HB 2177 4
24 537.675 to 537.693. Such fees shall be paid out of, but not in addition to, the amount of 25 compensation to the attorney representing the claimant. No attorney for the claimant 26 shall ask for, contract for, or receive any larger sum than the amount allowed. 27 5. Prior to any hearing, the person filing a claim shall submit reports, if available, 28 from all hospitals, physicians or surgeons who treated or examined the victim for the injury 29 for which compensation is sought. If, in the opinion of the division, an examination of the 30 injured victim or a report on the cause of death of the victim would be of material aid, the 31 division may appoint a duly qualified, impartial physician to make an examination and report. 32 A finding of the judge or jury in the underlying case shall be considered as evidence. 33 6. Each and every payment shall be exempt from attachment, garnishment or any 34 other remedy available to creditors for the collection of a debt, provided however, this section 35 shall not in any way affect the right of any attorney who represents or represented any 36 claimant to collect any fee or expenses to which he or she is entitled, provided that 37 attorney's fees awarded from the filing and adjudication of the claim are determined to 38 be just and reasonable by the hearing officer and do not to exceed fifteen percent of the 39 applicant's payment from the compensation fund. 40 7. Payments of compensation shall not be made directly to any person legally 41 incompetent to receive them but shall be made to the parent, guardian or conservator for the 42 benefit of such minor, disabled or incapacitated person. 43 8. For payment of all claims from the fund, the division shall determine the aggregate 44 amount of all awards made on those claims filed during an annual claims period. Such 45 determination shall be made on or before the thirtieth day of June in the next succeeding year. 46 If the aggregate value of the awards does not exceed the total amount of money in the fund, 47 then the awards shall be paid in full on or before the thirtieth day of September in the next 48 succeeding year. If the aggregate value of the awards does exceed the total amount of money 49 in the fund, then the awards shall be paid on a pro rata basis on or before the thirtieth day of 50 September in the next succeeding year. 51 9. If there are no funds available, then no claim shall be paid until funds have 52 accumulated in the tort victims' compensation fund and have been appropriated to the division 53 for payment to uncompensated tort victims. When sufficient funds become available for 54 payment of claims of uncompensated tort victims, awards that have been determined but have 55 not been paid shall be paid in chronological order with the oldest paid first, based upon the 56 date on which the application was filed with the division. Any award pursuant to this 57 subsection that cannot be paid due to a lack of funds appropriated for payment of claims of 58 uncompensated tort victims shall not constitute a claim against the state. 59 10. In the event there are no funds available for payment of claims, then the division 60 may suspend all action related to valuing claims and granting awards until such time as funds HB 2177 5
61 in excess of one hundred thousand dollars have accumulated in the tort victims' compensation 62 fund, at which time the division shall resume its claim processing duties. 595.010. 1. As used in sections 595.010 to 595.075, unless the context requires 2 otherwise, the following terms shall mean: 3 (1) "Child", a dependent, unmarried person who is under eighteen years of age and 4 includes a posthumous child, stepchild, or an adopted child; 5 (2) "Claimant", a victim or a dependent, relative, survivor, or member of the family, 6 of a victim eligible for compensation pursuant to sections 595.010 to 595.075; 7 (3) "Conservator", a person or corporation appointed by a court to have the care and 8 custody of the estate of a minor or a disabled person, including a limited conservator; 9 (4) "Counseling", problem-solving and support provided by a licensed service 10 provider as listed in section 595.030 concerning emotional issues that result from criminal 11 victimization [licensed pursuant to section 595.030]. Counseling is a confidential service 12 provided either on an individual basis or in a group. Counseling has as a primary purpose to 13 enhance, protect and restore a person's sense of well-being and social functioning after 14 victimization. Counseling does not include victim advocacy services such as crisis telephone 15 counseling, attendance at medical procedures, law enforcement interviews or criminal justice 16 proceedings; 17 (5) "Crime", an act committed in this state which, regardless of whether it is 18 adjudicated, involves the application of force or violence or the threat of force or violence by 19 the offender upon the victim but shall include the crime of driving while intoxicated, 20 vehicular manslaughter and hit and run; and provided, further, that no act involving the 21 operation of a motor vehicle except driving while intoxicated, vehicular manslaughter and hit 22 and run which results in injury to another shall constitute a crime for the purpose of sections 23 595.010 to 595.075, unless such injury was intentionally inflicted through the use of a motor 24 vehicle. A crime shall also include an act of terrorism, as defined in 18 U.S.C. Section 2331, 25 which has been committed outside of the United States against a resident of Missouri; 26 (6) "Crisis intervention counseling", helping to reduce psychological trauma where 27 victimization occurs; 28 (7) "Department", the department of public safety; 29 (8) "Dependent", mother, father, spouse, spouse's mother, spouse's father, child, 30 grandchild, adopted child, illegitimate child, niece or nephew, who is wholly or partially 31 dependent for support upon, and living with, but shall include children entitled to child 32 support but not living with, the victim at the time of his injury or death due to a crime alleged 33 in a claim pursuant to sections 595.010 to 595.075; HB 2177 6
34 (9) "Direct service", providing physical services to a victim of crime including, but 35 not limited to, transportation, funeral arrangements, child care, emergency food, clothing, 36 shelter, notification and information; 37 (10) "Director", the director of public safety of this state or a person designated by 38 him for the purposes of sections 595.010 to 595.075; 39 (11) "Disabled person", one who is unable by reason of any physical or mental 40 condition to receive and evaluate information or to communicate decisions to such an extent 41 that the person lacks ability to manage his financial resources, including a partially disabled 42 person who lacks the ability, in part, to manage his financial resources; 43 (12) "Eligible injured victim", a person who at the time of application for 44 compensation from the crime victims' compensation fund is: 45 (a) A citizen of the United States, a lawful permanent resident, or a person 46 lawfully present in the United States under a valid visa issued by the United States 47 Department of State; and 48 (b) Killed or suffered personal physical injury in this state as a result of: 49 a. The commission or attempted commission of any crime by another person; 50 b. A good-faith attempt to assist a person against whom a crime is being 51 committed or attempted; or 52 c. Assisting a law enforcement officer in the apprehension of a person the officer 53 has reason to believe has committed or attempted to commit a crime; 54 (13) "Emergency service", those services provided to alleviate the immediate effects 55 of the criminal act or offense, and may include cash grants of not more than one hundred 56 dollars; 57 [(13)] (14) "Earnings", net income or net wages; 58 [(14)] (15) "Family", the spouse, parent, grandparent, stepmother, stepfather, child, 59 grandchild, brother, sister, half brother, half sister, adopted children of parent, or spouse's 60 parents; 61 [(15)] (16) "Funeral expenses", the expenses of the funeral, burial, cremation or other 62 chosen method of interment, including plot or tomb and other necessary incidents to the 63 disposition of the remains; 64 [(16)] (17) "Gainful employment", engaging on a regular and continuous basis, up to 65 the date of the incident upon which the claim is based, in a lawful activity from which a 66 person derives a livelihood; 67 [(17)] (18) "Guardian", one appointed by a court to have the care and custody of the 68 person of a minor or of an incapacitated person, including a limited guardian; 69 [(18)] (19) "Hit and run", the crime of leaving the scene of a motor vehicle accident 70 as defined in section 577.060; HB 2177 7
71 [(19)] (20) "Incapacitated person", one who is unable by reason of any physical or 72 mental condition to receive and evaluate information or to communicate decisions to such an 73 extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety 74 or other care such that serious physical injury, illness, or disease is likely to occur, including a 75 partially incapacitated person who lacks the capacity to meet, in part, such essential 76 requirements; 77 [(20)] (21) "Injured victim", a person: 78 (a) Killed or receiving a personal physical injury in this state as a result of another 79 person's commission of or attempt to commit any crime; 80 (b) Killed or receiving a personal physical injury in this state while in a good faith 81 attempt to assist a person against whom a crime is being perpetrated or attempted; 82 (c) Killed or receiving a personal physical injury in this state while assisting a law 83 enforcement officer in the apprehension of a person who the officer has reason to believe has 84 perpetrated or attempted a crime; 85 [(21)] (22) "Law enforcement official", a sheriff and his regular deputies, municipal 86 police officer or member of the Missouri state highway patrol and such other persons as may 87 be designated by law as peace officers; 88 [(22)] (23) "Offender", a person who commits a crime; 89 [(23)] (24) "Personal injury", physical, emotional, or mental harm or trauma resulting 90 from the crime upon which the claim is based; 91 [(24)] (25) "Pr