MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary

By: Senator(s) Frazier

AN ACT TO AMEND SECTION 99-41-5, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 99-41-17, MISSISSIPPI CODE OF 1972, TO EXCLUDE CERTAIN FELONS FROM ELIGIBILITY FOR COMPENSATION AS VICTIMS OR CLAIMANTS; TO AMEND SECTION 99-41-23, MISSISSIPPI CODE OF 1972, TO INCREASE THE AMOUNT OF COMPENSATION DUE TO LOST WAGES; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 99-41-5, Mississippi Code of 1972, is amended as follows:

99-41-5. As used in this chapter, unless the context otherwise requires, the term:

(a) "Allowable expense" means reasonable charges incurred for reasonably needed:

(i) Products, services and accommodations, including, but not limited to, medical care, rehabilitation, rehabilitative occupational training and other remedial treatment and care;

(ii) Mental health counseling and care not to exceed Two Thousand Five Hundred Dollars ($2,500.00) for the victim and victim's family member; provided, however, if there is more than one (1) family member, the amount of compensation awarded shall be prorated and not to exceed Two Thousand Five Hundred Dollars ($2,500.00); and

(iii) Expenses related to funeral, cremation or burial, but not to exceed a total charge of Three Thousand Five Hundred Dollars ($3,500.00);

(b) "Claimant" means any of the following persons applying for compensation under this chapter:

(i) A victim;

(ii) A dependent of a victim who has died because of criminally injurious conduct; or

(iii) A person authorized to act on behalf of any of the persons enumerated in subparagraphs (i) and (ii) of this paragraph; however, "claimant" shall not include any of the following: provider or creditor of victim; assignee of provider or creditor, including a collection agency; or another person or entity other than those enumerated in this paragraph;

(c) "Collateral source" means a source of benefits or advantages for economic loss for which the claimant would otherwise be eligible to receive compensation under this chapter which the claimant has received, or which is readily available to the claimant, from any one or more of the following:

(i) The offender;

(ii) The government of the United States or any agency thereof, a state or any of its political subdivisions or an instrumentality of two (2) or more states;

(iii) Social Security, Medicare and Medicaid;

(iv) Workers' compensation;

(v) Wage continuation programs of any employer;

(vi) Proceeds of a contract of insurance payable to the claimant for loss which the victim sustained because of the criminally injurious conduct;

(vii) A contract providing prepaid hospital and other health care services or benefits for disability; or

(viii) Any temporary nonoccupational disability insurance;

(d) "Criminally injurious conduct" means an act occurring or attempted within the geographical boundaries of this state, or to a resident of Mississippi while that resident is within any other state of the United States or any foreign country, which state or foreign country does not provide compensation for those injuries caused by an act for which compensation would be available had the act occurred in Mississippi, and which act results in personal injury or death to a victim for which punishment by fine, imprisonment or death may be imposed. The term shall also apply to federal offenses committed within the state and delinquent acts as defined in Section 43-21-105 which meet this definition;

(e) "Department" means the Department of Finance and Administration;

(f) "Dependent" means a natural person wholly or partially dependent upon the victim for care or support, and includes a child of the victim born after the death of the victim where the death occurred as a result of criminally injurious conduct;

(g) "Economic loss of a dependent" means loss, after death of the victim, of contributions or things of economic value to the dependent, not including services which would have been received from the victim if he or she had not suffered the fatal injury, less expenses of the dependent avoided by reason of death of the victim;

(h) "Economic loss" means monetary detriment consisting only of allowable expense, work loss and, if injury causes death, economic loss of a dependent, but shall not include noneconomic loss or noneconomic detriment;

(i) "Family member" means the victim's spouse, parent, grandparent, stepparent, child, stepchild, grandchild, brother, sister, half brother, half sister or spouse's parent;

(j) "Noneconomic loss or detriment" means pain, suffering, inconvenience, physical impairment and nonpecuniary damage;

(k) "Work loss" means loss of income from work the victim or claimant would have performed if the victim had not been injured, but reduced by any income from substitute work actually performed by the victim or claimant or by income the victim or claimant would have earned in available appropriate substitute work that he or she was capable of performing, but unreasonably failed to undertake; and

(l) "Victim" means a person who suffers personal injury or death as a result of criminally injurious conduct.

SECTION 2. Section 99-41-17, Mississippi Code of 1972, is amended as follows:

99-41-17. (1) Compensation shall not be awarded under this chapter:

(a) Unless the criminally injurious conduct occurred after July 1, 1991;

(b) Unless the claim has been filed with the director within eighteen (18) months after the crime occurred, or in cases of child sexual abuse, within eighteen (18) months after the crime was reported to law enforcement or the Department of Human Services, but in no event later than the child's twenty-first birthday;

(c) To a claimant or victim who was the offender or an accomplice to the offender, or, except in cases of children under the age of consent as specified in Section 97-3-65, 97-3-97 or 97-5-23, Mississippi Code of 1972, who encouraged or in any way knowingly participated in criminally injurious conduct;

(d) To another person, if the award would unjustly benefit the offender or accomplice;

(e) Unless the criminally injurious conduct resulting in injury or death was reported to a law enforcement officer within seventy-two (72) hours after its occurrence or unless it is found that there was good cause for the failure to report within such time;

(f) To any claimant or victim when the injury or death occurred while the victim was confined in any federal, state, county or city jail or correctional facility

(g) If the victim was injured as a result of the operation of a motor vehicle, boat or airplane, unless the vehicle was used by the offender (i) while under the influence of alcohol or drugs, or (ii) as a weapon in the deliberate attempt to injure or cause the death of the victim;

(h) If, following the filing of an application, the claimant failed to take further steps as required by the department to support the application, within forty-five (45) days of such request made by the director, or failed to otherwise cooperate with requests of the director to determine eligibility unless failure to provide information was beyond the control of the claimant;

(i) To a claimant or victim who, subsequent to the injury for which application is made, is convicted of any felony which is a violation of the Controlled Substances Act, or in which a weapon was used or possessed or in which any personal injury was committed or attempted, and the conviction becomes known to the director.

(2) Compensation otherwise payable to a claimant shall be diminished to the extent:

(a) That the economic loss is recouped from other sources, including collateral sources; and

(b) Of the degree of responsibility for the cause of injury or death attributable to the victim or claimant.

(3) Upon a finding that the claimant or victim has not fully cooperated with appropriate law enforcement agencies and prosecuting attorneys, an award of compensation may be denied, withdrawn or reduced.

(4) The director, on his own motion or on request of the claimant, may reconsider a decision granting or denying an award or determining its amount. An order on reconsideration of an award shall not require a refund of amounts previously paid unless the award was obtained by fraud. The right of reconsideration does not affect the finality of the decision concerning the amount of compensation for the purpose of judicial review.

SECTION 3. Section 99-41-23, Mississippi Code of 1972, is amended as follows:

99-41-23. (1) Compensation for work loss and dependent's economic loss may not exceed Four Hundred Fifty Dollars ($450.00) per week, not to exceed fifty-two (52) weeks; provided, however, if there is more than one (1) dependent per victim, the amount of compensation awarded shall be prorated among the dependents, and the total amount of the award may not exceed the aggregate limitation of this section.

(2) Compensation payable to a victim and to all other claimants sustaining economic loss because of injury to or death of that victim may not exceed Ten Thousand Dollars ($10,000.00) in the aggregate.

(3) A determination that compensation shall be awarded may provide for payment to a claimant in a lump sum or in installments. All medical bills may be paid directly to affected health care providers. At the request of the claimant, the director may convert future economic loss, other than allowable expense, to a lump sum, but only upon a finding of either of the following:

(a) That the award in a lump sum will promote the interests of the claimant; or

(b) That the present value of all future economic loss, other than allowable expense, does not exceed One Thousand Dollars ($1,000.00).

(4) An award payable in installments for future economic loss may be made only for a period as to which the future economic loss can reasonably be determined. An award payable in installments for future economic loss may be modified upon findings that a material and substantial change of circumstances has occurred.

(5) An award shall not be subject to execution, attachment, garnishment or other process, except that an award shall not be exempt from orders for the withholding of support for minor children, and except that an award for allowable expense shall not be exempt from a claim of a creditor to the extent that such creditor has provided products, services or accommodations, the costs of which are included in the award.

(6) An assignment by the claimant to any future award under the provisions of this chapter is unenforceable, except:

(a) An assignment of any award for work loss to assure payment of court-ordered alimony, maintenance or child support; or

(b) An assignment for any award for allowable expense to the extent that the benefits are for the cost of products, services or accommodations necessitated by the injury or death on which the claim is based and which are provided or are to be provided by the assignee.

SECTION 4. This act shall take effect and be in force from and after July 1, 1998.