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As Reported by the Senate Judiciary Committee
122nd General Assembly
Regular Session
1997-1998 | Sub. H. B. No. 523 |
REPRESENTATIVES SALERNO-BRITTON-CAREY-CORBIN-GARCIA-GARDNER-JONES-
MOTTLEY-PRINGLE-SULZER-TAYLOR-THOMAS-WILLIAMS-WOMER BENJAMIN-
MASON-BATCHELDER-SUTTON-FORD-WILLAMOWSKI-KRUPINSKI-COLONNA-
REID-WISE-METZGER-TIBERI-MYERS-BRADING-HOUSEHOLDER-JOHNSON-
LEWIS-PRENTISS-VERICH-PATTON-OPFER-O'BRIEN-OLMAN-HARRIS-
GRENDELL-MOTTL-CORE-BENDER-BOYD-HEALY-VESPER-TAVARES-
ROBERTS-HAINES-METELSKY-DAMSCHRODER-YOUNG-MILLER-
SENATORS J. JOHNSON-OELSLAGER-B. JOHNSON
A BILL
To amend sections 2743.51, 2743.56, and 2743.62 of the Revised
Code to increase the amount of recoverable funeral expenses under the Crime
Victims Reparations Law, to revise the
information an applicant must submit
in an application for a reparations award
under that Law, and to provide that confidential information obtained by the
Court of Claims or Attorney General under that Law remains confidential while
in the Court's or Attorney General's possession.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2743.51, 2743.56, and 2743.62 of the
Revised Code be amended to read as follows:
Sec. 2743.51. As used in sections 2743.51 to 2743.72 of
the Revised Code:
(A) "Claimant" means both of the following categories of
persons:
(1) Any of the following persons who claim an award of
reparations under sections 2743.51 to 2743.72 of the Revised
Code:
(a) A victim who was one of the following at the time of
the criminally injurious conduct:
(i) A resident of the United States;
(ii) A resident of a foreign country the laws of which
permit residents of this state to recover compensation as victims
of offenses committed in that country.
(b) A dependent of a deceased victim who is described in
division (A)(1)(a) of this section;
(c) A third person, other than a collateral source, who
legally assumes or voluntarily pays the obligations of a victim,
or of a dependent of a victim, who is described in division
(A)(1)(a) of this section, which obligations are incurred as a
result of the criminally injurious conduct that is the subject of
the claim and may include, but are not limited to, medical or
burial expenses;
(d) A person who is authorized to act on behalf of any
person who is described in division (A)(1)(a), (b), or (c) of
this section.
(2) Any of the following persons who claim an award of
reparations under sections 2743.51 to 2743.72 of the Revised
Code:
(a) A victim who had a permanent place of residence within
this state at the time of the criminally injurious conduct and
who, at the time of the criminally injurious conduct, complied
with any one of the following:
(i) Had a permanent place of employment in this state;
(ii) Was a member of the regular armed forces of the
United States or of the United States coast guard or was a
full-time member of the Ohio organized militia or of the United
States army reserve, naval reserve, or air force reserve;
(iii) Was retired and receiving social security or any
other retirement income;
(iv) Was sixty years of age or older;
(v) Was temporarily in another state for the purpose of
receiving medical treatment;
(vi) Was temporarily in another state for the purpose of
performing employment-related duties required by an employer
located within this state as an express condition of employment
or employee benefits;
(vii) Was temporarily in another state for the purpose of
receiving occupational, vocational, or other job-related training
or instruction required by an employer located within this state
as an express condition of employment or employee benefits;
(viii) Was a full-time student at an academic institution,
college, or university located in another state;
(ix) Had not departed the geographical boundaries of this
state for a period exceeding thirty days or with the intention of
becoming a citizen of another state or establishing a permanent
place of residence in another state.
(b) A dependent of a deceased victim who is described in
division (A)(2)(a) of this section;
(c) A third person, other than a collateral source, who
legally assumes or voluntarily pays the obligations of a victim,
or of a dependent of a victim, who is described in division
(A)(2)(a) of this section, which obligations are incurred as a
result of the criminally injurious conduct that is the subject of
the claim and may include, but are not limited to, medical or
burial expenses;
(d) A person who is authorized to act on behalf of any
person who is described in division (A)(2)(a), (b), or (c) of
this section.
(B) "Collateral source" means a source of benefits or
advantages for economic loss otherwise reparable that the victim
or claimant has received, or that is readily available to the
victim or claimant, from any of the following sources:
(1) The offender;
(2) The government of the United States or any of its
agencies, a state or any of its political subdivisions, or an
instrumentality of two or more states, unless the law providing
for the benefits or advantages makes them excess or secondary to
benefits under sections 2743.51 to 2743.72 of the Revised Code;
(3) Social security, medicare, and medicaid;
(4) State-required, temporary, nonoccupational disability
insurance;
(5) Workers' compensation;
(6) Wage continuation programs of any employer;
(7) Proceeds of a contract of insurance payable to the
victim for loss that the victim sustained because of the
criminally
injurious conduct;
(8) A contract providing prepaid hospital and other health
care services, or benefits for disability;
(9) That portion of the proceeds of all contracts of
insurance payable to the claimant on account of the death of the
victim that exceeds fifty thousand dollars;
(10) Any compensation recovered or recoverable under the
laws of another state, district, territory, or foreign country
because the victim was the victim of an offense committed in that
state, district, territory, or country.
"Collateral source" does not include any money, or the
monetary value of any property, that is subject to sections
2969.01 to 2969.06 of the Revised Code.
(C) "Criminally injurious conduct" means one of the
following:
(1) For the purposes of any person described in division
(A)(1) of this section, any conduct that occurs or is attempted
in this state; poses a substantial threat of personal injury or
death; and is punishable by fine, imprisonment, or death, or
would be so punishable but for the fact that the person engaging
in the conduct lacked capacity to commit the crime under the laws
of this state. Criminally injurious conduct does not include
conduct arising out of the ownership, maintenance, or use of a
motor vehicle, except when any of the following applies:
(a) The person engaging in the conduct intended to cause
personal injury or death;
(b) The person engaging in the conduct was using the
vehicle to flee immediately after committing a felony or an act
that would constitute a felony but for the fact that the person
engaging in the conduct lacked the capacity to commit the felony
under the laws of this state;
(c) The person engaging in the conduct was using the
vehicle in a manner that constitutes an OMVI violation;
(d) The conduct occurred on or after July 25, 1990, and
the person engaging in the conduct was using the vehicle in a
manner that constitutes a violation of section 2903.08 of the
Revised Code.
(2) For the purposes of any person described in division
(A)(2) of this section, any conduct that occurs or is attempted
in another state, district, territory, or foreign country; poses
a substantial threat of personal injury or death; and is
punishable by fine, imprisonment, or death, or would be so
punishable but for the fact that the person engaging in the
conduct lacked capacity to commit the crime under the laws of the
state, district, territory, or foreign country in which the
conduct occurred or was attempted. Criminally injurious conduct
does not include conduct arising out of the ownership,
maintenance, or use of a motor vehicle, except when any of the
following applies:
(a) The person engaging in the conduct intended to cause
personal injury or death;
(b) The person engaging in the conduct was using the
vehicle to flee immediately after committing a felony or an act
that would constitute a felony but for the fact that the person
engaging in the conduct lacked the capacity to commit the felony
under the laws of the state, district, territory, or foreign
country in which the conduct occurred or was attempted;
(c) The person engaging in the conduct was using the
vehicle in a manner that constitutes an OMVI violation;
(d) The conduct occurred on or after July 25, 1990, the
person engaging in the conduct was using the vehicle in a manner
that constitutes a violation of any law of the state, district,
territory, or foreign country in which the conduct occurred, and
that law is substantially similar to a violation of section
2903.08 of the Revised Code.
(3) For the purposes of any person described in division (A)(1) or (2) of
this section, terrorism that occurs within or outside the territorial
jurisdiction of the United States.
(D) "Dependent" means an individual wholly or partially
dependent upon the victim for care and support, and includes a
child of the victim born after the victim's death.
(E) "Economic loss" means economic detriment consisting
only of allowable expense, work loss, funeral expense,
unemployment benefits 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.
(F) "Allowable expense" means reasonable charges incurred
for reasonably needed products, services, and accommodations,
including those for medical care, rehabilitation, rehabilitative
occupational training, and other remedial treatment and care and
including replacement costs for eyeglasses and other corrective
lenses. It does not include that portion of a charge for a room
in a hospital, clinic, convalescent home, nursing home, or any
other institution engaged in providing nursing care and related
services in excess of a reasonable and customary charge for
semiprivate accommodations, unless accommodations other than
semiprivate accommodations are medically required.
(G) "Work loss" means loss of income from work that the
injured person would have performed if the person had not
been injured
and expenses reasonably incurred by the person to obtain
services in
lieu of those the person would have performed for income,
reduced by any
income from substitute work actually performed by the
person, or by
income the person would have earned in available appropriate
substitute
work that the person was capable of performing but
unreasonably failed to
undertake.
(H) "Replacement services loss" means expenses reasonably
incurred in obtaining ordinary and necessary services in lieu of
those the injured person would have performed, not for income,
but for the benefit of the person's self or
family, if the person had not been
injured.
(I) "Dependent's economic loss" means loss after a
victim's death of contributions of things of economic value to
the victim's dependents, not including services they would
have received
from the victim if the victim had not suffered the fatal
injury, less expenses of the dependents avoided by reason of the victim's
death. If a minor child of a victim is adopted after the victim's death,
the minor child continues after the adoption to incur a dependent's economic
loss as a result of the victim's death. If the surviving spouse of a victim
remarries, the surviving spouse continues after the remarriage to incur a
dependent's economic loss as a result of the victim's death.
(J) "Dependent's replacement services loss" means loss
reasonably 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 the victim
had not suffered the fatal injury, less expenses of the dependents
avoided by reason of the victim's death and not subtracted in
calculating the dependent's economic loss. If a minor child of a victim is
adopted after the victim's death, the minor child continues after the adoption
to incur a dependent's replacement services loss as a result of the victim's
death. If the surviving spouse of a victim remarries, the surviving spouse
continues after the remarriage to incur a dependent's replacement services
loss as a result of the victim's death.
(K) "Noneconomic detriment" means pain, suffering,
inconvenience, physical impairment, or other nonpecuniary damage.
(L) "Victim" means a person who suffers personal injury or
death as a result of any of the following:
(1) Criminally injurious conduct;
(2) The good faith effort of any person to prevent
criminally injurious conduct;
(3) The good faith effort of any person to apprehend a
person suspected of engaging in criminally injurious conduct.
(M) "Contributory misconduct" means any conduct of the
claimant or of the victim through whom the claimant claims an
award of reparations 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.
(N) "Funeral expense" means any reasonable charges that
are not in excess of two FIVE thousand five hundred
dollars PER FUNERAL and that
are incurred for expenses directly related to the A victim's
funeral, cremation, or burial.
(O) "Unemployment benefits loss" means a loss of
unemployment benefits pursuant to Chapter 4141. of the Revised
Code when the loss arises solely from the inability of a victim
to meet the able to work, available for suitable work, or the
actively seeking suitable work requirements of division (A)(4)(a)
of section 4141.29 of the Revised Code.
(P) "OMVI violation" means any of the following:
(1) A violation of section 4511.19 of the Revised Code, of
any municipal ordinance prohibiting the operation of a vehicle
while under the influence of alcohol, a drug of abuse, or alcohol
and a drug of abuse, or of any municipal ordinance prohibiting
the operation of a vehicle with a prohibited concentration of
alcohol in the blood, breath, or urine;
(2) A violation of section 2903.06 of the Revised Code, if
the offender was under the influence of alcohol, a drug of abuse,
or alcohol and a drug of abuse, at the time of the commission of
the offense;
(3) A violation of section 2903.07 of the Revised Code or
of a municipal ordinance substantially similar to that section,
if the offender was under the influence of alcohol, a drug of
abuse, or alcohol and a drug of abuse, at the time of the
commission of the offense;
(4) For purposes of any person described in division
(A)(2) of this section, a violation of any law of the state,
district, territory, or foreign country in which the criminally
injurious conduct occurred, if that law is substantially similar
to a violation described in division (P)(1) of this section or if
that law is substantially similar to a violation described in
division (P)(2) or (3) of this section and the offender was under
the influence of alcohol, a drug of abuse, or alcohol and a drug
of abuse, at the time of the commission of the offense.
(Q) "Pendency of the claim" for an original reparations
application or supplemental reparations application means the period of time
from the date the criminally injurious conduct upon which the application is
based occurred until the date a final order from the court of
claims concerning that original reparations application or supplemental
reparations application is issued.
(R) "Terrorism" means any activity to which all of
the following apply:
(1) The activity involves a violent act or an act that is
dangerous to human life.
(2) The act described in division
(R)(1) of this section is
committed within the territorial jurisdiction of the
United
States and is a violation of
the criminal laws of the United
States, this state, or any
other state or the act described in division
(R)(1) of this section is
committed outside the territorial jurisdiction of the
United
States and would be a violation
of the criminal laws of the
United
States, this state, or any
other state if committed within the territorial jurisdiction of
the United
States.
(3) The activity appears to be intended to do any of the
following:
(a) Intiidate INTIMIDATE or coerce a civilian
population;
(b) Influence the policy of any government by
intimidation or coercion;
(c) Affect the conduct of any government by
assassination or kidnapping.
(4) The activity occurs primarily outside the territorial
jurisdiction of the United
States or transcends the
national boundaries of the
United States in terms of the means by
which the activity is accomplished, the person or persons that
the activity appears intended to intimidate or coerce, or the
area or locale in which the perpetrator or perpetrators of the
activity operate or seek asylum.
(S) "Transcends the national boundaries of the
United States" means occurring outside
the territorial jurisdiction of the
United States in addition to occurring
within the territorial jurisdiction of the
United States.
Sec. 2743.56. (A) A claim for an award of reparations
shall be commenced by filing an application for an award of
reparations with the clerk of the court of claims or in the court
of common pleas pursuant to division (B) of this section.
(B) A claimant who files for an award of reparations in a
court of common pleas shall file in the court of common pleas of
the county of his THE CLAIMANT'S residence or, if he
THE CLAIMANT is not a resident of this
state, in the court of common pleas of the county in which the
criminally injurious conduct that is the basis of the application
took place. Each application shall be accompanied by a filing
fee of seven dollars and fifty cents unless waived pursuant to
division (B) of section 2743.57 of the Revised Code. The
application shall be in a form prescribed by the clerk of the
court of claims, and shall contain the following information:
(1) The name and address of the victim of the criminally
injurious conduct, the name and address of the claimant, and the
relationship of the claimant to the victim;
(2) If the victim is deceased, the name and address of
each dependent of the victim and the extent to which each is
dependent upon the victim for care and support;
(3) The nature of the criminally injurious conduct that is
the basis for the claim and the date on which the conduct
occurred;
(4)(3) The law enforcement agency or officer to whom the
criminally injurious conduct was reported and the date on which
it was reported;
(5)(4) The nature and extent of the injuries that the victim
sustained from the criminally injurious conduct, the name and
address of any person who gave medical treatment to the victim
for the injuries, the name and address of any hospital or similar
institution where the victim received medical treatment for the
injuries, and whether the victim died as a result of the
injuries;
(6)(5) The TYPE OF economic loss that the victim, a
dependent, or the
claimant sustained as a result of the criminally injurious
conduct;
(7) The amount of benefits or advantages that the victim,
a dependent, or the claimant has received or is entitled to
receive from any collateral source for economic loss that
resulted from the criminally injurious conduct and the name of
each collateral source;
(8)(6) A release authorizing the court of claims, the court
of claims commissioners, and the staff of the attorney general to
obtain any report, document, or information that relates to the
determination of the claim for an award of reparations that is
requested in the application;
(9)(7) Any information that the clerk of the court of claims
requires and that is reasonably related to an application for an
award of reparations. The clerk of the court of claims may
require the claimant to submit with the application materials to
substantiate the facts that are stated in the application.
(C) All applications for an award of reparations shall be
filed as follows:
(1) If the victim of the criminally injurious conduct was
a minor, within two years from the date a complaint, indictment,
or information is filed against the alleged offender. This
division does not require that a complaint, indictment, or
information be filed against an alleged offender in order for an
application for an award of reparations to be filed pertaining to
a victim who was a minor, and does not affect the provisions of
section 2743.64 of the Revised Code. This division applies to
all applications for an award of reparations filed on or after
March 11, 1987, and to any application for an award of
reparations filed before March 11, 1987, for which an award or
denial of the claim is not final within the meaning of division
(B) of section 2743.61 of the Revised Code.
(2) If the victim of the criminally injurious conduct was
an adult, within two years after the occurrence of the criminally
injurious conduct.
Sec. 2743.62. (A) There (1) SUBJECT TO DIVISION
(A)(2) OF THIS SECTION, THERE is no privilege, except the
privileges arising from the attorney-client relationship, as to
communications or records that are relevant to the physical,
mental, or emotional condition of the claimant or victim in a
proceeding under sections 2743.51 to 2743.72 of the Revised Code
in which that condition is an element.
(2)(a) EXCEPT AS SPECIFIED IN DIVISION
(A)(2)(b) OF THIS SECTION, ANY RECORD OR REPORT THAT THE
COURT OF CLAIMS OR
ATTORNEY GENERAL HAS OBTAINED PRIOR TO, OR OBTAINS ON OR AFTER, THE EFFECTIVE
DATE OF THIS AMENDMENT UNDER THE PROVISIONS OF SECTIONS 2743.51 TO 2743.72
OF
THE REVISED CODE AND THAT IS CONFIDENTIAL
OR OTHERWISE EXEMPT FROM PUBLIC DISCLOSURE UNDER SECTION 149.43 OF THE
REVISED CODE
WHILE IN THE POSSESSION OF THE CREATOR OF THE RECORD OR REPORT SHALL REMAIN
CONFIDENTIAL OR EXEMPT FROM PUBLIC DISCLOSURE UNDER SECTION 149.43 OF THE
REVISED CODE
WHILE IN THE POSSESSION OF THE COURT OF CLAIMS OR THE ATTORNEY GENERAL.
(b) NOTWITHSTANDING DIVISION (A)(2)(a)
OF THIS SECTION, THE COURT OF CLAIMS, CLAIMANT, CLAIMANT'S ATTORNEY, OR
ATTORNEY GENERAL MAY DISCLOSE
OR REFER TO RECORDS OR REPORTS DESCRIBED IN THAT DIVISION IN ANY HEARING
CONDUCTED UNDER SECTIONS 2743.51 TO 2743.72 of the Revised Code OR IN THE COURT'S,
CLAIMANT'S, OR
ATTORNEY GENERAL'S WRITTEN PLEADINGS, FINDINGS, RECOMMENDATIONS, AND
DECISIONS.
(B) If the mental, physical, or emotional condition of a
victim or claimant is material to a claim for an award of
reparations, a single commissioner or a panel of commissioners
may order the victim or claimant to submit to a mental or
physical examination by a physician or psychologist and may
order an autopsy of a deceased victim. The order may be made for
good cause shown and upon notice to the person to be examined and
to the claimant and the attorney general. The order shall
specify the time, place, manner, conditions, and scope of the
examination or autopsy and the person by whom it is to be made
and shall require the person who performs the examination or
autopsy to file with the clerk of the court of claims a detailed
written report of the examination or autopsy. The report shall
set out the findings, including the results of all tests made,
diagnoses, prognoses, and other conclusions and reports of
earlier examinations of the same conditions.
(C) On request of the person examined, the clerk of the
court of claims shall furnish the person a copy of the report. If the
victim is deceased, the clerk of the court of claims, on request,
shall furnish the claimant a copy of the report.
(D) A single commissioner or a panel of commissioners may
require the claimant to supplement the application for an award
of reparations with any reasonably available medical or
psychological reports relating to the injury for which the award
of reparations is claimed.
(E) The court, a single commissioner, a panel of
commissioners, or the attorney general, in a claim arising out of
a violation of any provision of sections 2907.02 to 2907.07
of the Revised Code, shall not request the victim or the claimant to
supply, or permit any person to supply, any evidence of specific
instances of the victim's sexual activity, opinion evidence of
the victim's sexual activity, or reputation evidence of the
victim's sexual activity unless it involves evidence of the
origin of semen, pregnancy, or disease or evidence of the
victim's past sexual activity with the offender and only to the
extent that the court, the commissioners, or the attorney general
finds that the evidence is relevant to a fact at issue in the
claim.
Section 2. That existing sections 2743.51, 2743.56, and 2743.62
of the Revised Code are hereby repealed.
Section 3. Section 2743.51 of the Revised Code is presented in this act
as a composite of the section as amended by both
H.B. 378 and H.B. 471 of the 122nd General Assembly, with the new language of
neither of the acts shown in capital letters. This is in
recognition of the principle stated in division (B) of section
1.52 of the Revised Code that such amendments are to be
harmonized where not substantively irreconcilable and constitutes
a legislative finding that such is the resulting version in
effect prior to the effective date of this act.
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