8 CSR 50-8.010 - Rules Governing Tort Victims
(1)
Compliance with Rule. Any party pursuing a claim against the Tort Victims'
Compensation Fund shall comply with this rule.
(2) Terms Defined.
(A) Terms defined in section
537.675, RSMo, shall have the
same meaning when used in this rule.
(B) The following terms, when used in this
rule, shall mean:
1. Award-A final
administrative determination made by the division on a claim against the Tort
Victims' Compensation Fund, or a final decision made by an administrative law
judge or legal advisor following an evidentiary hearing, or a final decision by
the Labor and Industrial Relations Commission or by the appellate
court;
2. Claimant-A person filing
a claim against the Tort Victims' Compensation Fund, alleging to be an
uncompensated tort victim;
3. Due
diligence in enforcing the judgment-Utilization of reasonable lawful efforts to
collect the amount of the judgment (in whole or in part) from the judgment
debtor, from the judgment debtor's policy or policies of insurance, and from
the judgment debtor's property, without unreasonable delay;
4. Judgment debtor-A person or entity against
whom judgment has been obtained and which judgment remains
unsatisfied;
5. Tortfeasor-A person
or entity whose negligent, grossly negligent, reckless or intentional act or
acts, or failure to act, personally or through an agent, results in injury or
death to any other person.
(3) Filing of Claims and Supporting
Documentation.
(A) A claim against the Tort
Victims' Compensation Fund must be commenced by the filing of an Application
for Tort Victims Compensation (form WCT-1) with the Tort Victims' Compensation
Program at the division's Jefferson City office. An application may be made on
the WCT-1 form printed by the division, or an accurate photocopy
thereof.
(B) The Application for
Tort Victims' Compensation (form WCT-1) may be filed in person at the
division's Jefferson City office or by mailing to the division's Jefferson City
office. An Application for Tort Victims' Compensation presented or mailed to a
division office other than the Jefferson City office shall be rejected for
filing.
(C) Any Application for
Tort Victims' Compensation shall not be considered filed with the division
until completed in its entirety and date-stamped by the division. Upon the
filing of an Application for Tort Victims' Compensation with the division, the
division shall assign a case identification number to the proceedings and
acknowledge receipt of the Application for Tort Victims' Compensation by
mailing an acknowledgment letter by first class mail, postage prepaid, to the
claimant at the claimant's last known address or to the last known address of
the claimant's attorney or other legal representative. The case identification
number for a case commenced during the initial claims period shall contain the
prefix "ICP." The case identification number for a case commenced after
December 31, 2002, shall have as its prefix the calendar year of its filing
(e.g., "2003," "2004").
(D) All
correspondence and communications concerning any pending Application for Tort
Victims' Compensation shall be directed to the division's Jefferson City
office, and shall bear the case identification number assigned by the division.
All forms, reports, affidavits, medical records, and other documents concerning
any Application for Tort Victims' Compensation shall be filed with the
division's Jefferson City office, and shall bear the case identification number
assigned by the division.
(E)
Within thirty (30) days after filing of the Application for Tort Victims'
Compensation, the claimant shall file with the division's Jefferson City office
a certified copy of a final monetary judgment against a tortfeasor for personal
injury or wrongful death, as well as documentation that all appeals are final,
or that the time for appeal has expired. In a case where no final judgment has
been rendered, within thirty (30) days after filing of the Application for Tort
Victims' Compensation, the claimant shall file with the division's Jefferson
City office the affidavit establishing the basis upon which the requirement of
a final judgment should be waived, in accordance with section 537.678.2,
RSMo.
(F) Within thirty (30) days
after filing of the Application for Tort Victims' Compensation, the claimant
shall file with the division's Jefferson City office all documentation
evidencing that the claimant has not collected the full amount of the judgment
and that the claimant has exercised due diligence in enforcing the judgment
against the tortfeasor. This documentation may include, but is not limited to,
certified copies of the tortfeasor's discharge in bankruptcy, insurance
policies of the tortfeasor, documents evidencing insolvency of the tortfeasor's
insurer, affidavits, documents evidencing attempts at execution, attachment,
garnishment, sequestration, etc., results of asset searches, and other similar
documentation.
(G) Within thirty
(30) days after filing of the Application for Tort Victims' Compensation, the
claimant shall file with the division's Jefferson City office the medical
reports bearing upon claimant's injuries occasioned by the tortfeasor,
including diagnosis, treatment, prognosis and description of permanent injury
and disability.
(H) Within thirty
(30) days after filing of the Application for Tort Victims' Compensation, the
claimant shall file with the division's Jefferson City office legible identical
photocopies of all bills and documents supporting the payment of all
unreimbursed expenses and medical costs, and documents supporting claims of
lost wages or other income, or loss of support occasioned by the injuries or
the death.
(I) If, in the judgment
of the division, additional documentation is required of the claimant, the
claimant shall provide same upon written request of the division, within twenty
(20) days of such written request.
(J) Upon application of the claimant, the
division may allow additional time for the filing of any documents required
under subsections (E), (F), (G), (H), and (I) of this section.
(K) After filing the Application for Tort
Victims' Compensation, if the claimant fails timely to take all necessary steps
to support the claim as may be required by the division, including, but not
limited to, the filing of any documents required under subsections (E), (F),
(G), (H) and (I) of this section, the division may dismiss the claim without
prejudice. After such dismissal without prejudice, the claimant may refile the
claim unless it is then barred by the applicable statute or statutes of
limitation. A claim which is refiled after having been dismissed shall be given
a different case identification number.
(L) Except for claims filed during the
initial claims period, if it appears to the division that the claim has not
been filed within the time limits established by section 537.684.2, RSMo, the
division may enter its order dismissing the claim, and such dismissal shall be
deemed a final award for purposes of review by the Labor and Industrial
Relations Commission.
(4)
Administrative Review of Claims; Request for Hearing on Administrative
Determination; Failure of Timely Request for Hearing.
(A) Within sixty (60) days after the filing
of an Application for Tort Victims' Compensation, the division shall commence
an administrative review of the Application for Tort Victims' Compensation and
of the documentation provided by the claimant. During this review, the division
may require the claimant to produce additional documentation as contemplated in
subsection (3)(I) herein-above, and may also require the claimant to file one
(1) or more affidavits or to answer written questions under oath.
(B) Upon completion of the administrative
review, the division shall issue its administrative determination awarding
compensation in an amount certain or denying compensation in full. The division
shall, immediately upon issuance of the administrative determination, send a
copy thereof by first class mail, postage prepaid, to the claimant at the
claimant's last known address or to the last known address of the claimant's
attorney or other legal representative. The administrative determination shall
contain a notice advising the claimant of the claimant's right to a hearing on
the claim, instructions for requesting a hearing, and a form for the filing of
the request for hearing.
(C) In the
event the claimant does not wish to accept the administrative determination,
the claimant shall, within twenty (20) days after the issuance of the
administrative determination, sign and file with the division's Jefferson City
office the request for hearing, utilizing the form provided with the
administrative determination.
(D)
In the event the claimant does not file the request for hearing within twenty
(20) days after the issuance of the administrative determination, the
administrative determination shall become the final award in the
case.
(E) Upon timely filing of the
request for hearing, the division shall immediately assign the case to an
administrative law judge or legal advisor for evidentiary hearing.
(F) The claimant may withdraw the request for
hearing, with prejudice, at any time after the filing of the request and prior
to the conclusion of the evidentiary hearing. The withdrawal of the request for
hearing must be in writing and must be signed by the claimant and/or by the
claimant's attorney. The claimant may not withdraw the request for hearing
without prejudice. Upon withdrawal of the request for hearing, the
administrative determination shall become the final award in the
case.
(5) Evidentiary
Hearing; Where and When Held; How Conducted; Award; Review.
(A) All evidentiary hearings of claims
against the Tort Victims Compensation Fund shall be held in the division's
Jefferson City office.
(B) Within
twenty (20) days after the timely filing of the request for hearing, the
administrative law judge or legal advisor to whom the case is assigned shall
set the date and time for the evidentiary hearing. The notice of the date and
time of the evidentiary hearing shall be sent by first class mail, postage
prepaid, to the claimant at the claimant's last known address or to the last
known address of the claimant's attorney or other legal
representative.
(C) The evidentiary
hearing shall be a simple informal proceeding. The rules of evidence in civil
cases in the state of Missouri shall apply, except that the administrative law
judge or legal advisor may take official notice of the contents of the
division's file. A record shall be made of all evidentiary hearings held under
this rule. All exhibits offered into evidence shall be marked for
identification with the case identification number assigned by the division.
All exhibits admitted into evidence shall become a part of the record and shall
be retained in the division's file. Any exhibits offered into evidence, but not
admitted into evidence by the administrative law judge or legal advisor, may be
retained in the division's file for purposes of appellate review by the Labor
and Industrial Relations Commission and/or the appropriate appellate
court.
(D) The claimant shall be
prepared to present all evidence at the date and time set for the evidentiary
hearing. The hearing shall be completed on the scheduled date, unless, in the
sole discretion of the administrative law judge or legal advisor, there is
insufficient time to conclude the hearing on the scheduled date, in which case
the hearing shall be concluded on the next available date. The administrative
law judge or legal advisor may grant the claimant additional time after the
hearing, not exceeding ten (10) days, to submit additional documentary
evidence, if, in the sole discretion of the administrative law judge or legal
advisor, the failure to allow such additional time would result in substantial
injustice to the claimant.
(E) All
requests for continuance of an evidentiary hearing shall be in writing, shall
bear the case identification number assigned by the division, and shall be
filed with the division's Jefferson City office. The administrative law judge
or legal advisor shall continue an evidentiary hearing only for good cause, and
the evidentiary hearing, when continued, shall be rescheduled for the next
available date.
(F) If the claimant
fails to appear for the evidentiary hearing at the date and time scheduled, the
administrative law judge or legal advisor, in his or her sole discretion, may
reschedule the evidentiary hearing for the next available date, or may dismiss
the request for hearing with prejudice. The dismissal of the request for
hearing by the administrative law judge or legal advisor for such failure of
the claimant to appear shall render the administrative determination the final
award in the case. Immediately upon the rendering of a dismissal of a request
for hearing by the administrative law judge or legal advisor for failure of the
claimant to appear, the division shall send a copy thereof by first class mail,
postage prepaid, to the claimant at the claimant's last known address or to the
last known address of the claimant's attorney or other legal representative.
Such dismissal shall be deemed a final award for purposes of review by the
Labor and Industrial Relations Commission.
(G) Within thirty (30) days after the
conclusion of the evidentiary hearing, the administrative law judge or legal
advisor shall issue the decision in the case, either awarding compensation in
an amount certain or denying compensation in full.
(H) The division shall, immediately upon
issuance of the decision, send a copy thereof by first class mail, postage
prepaid, to the claimant at the claimant's last known address or to the last
known address of the claimant's attorney or other legal representative. The
decision shall contain a notice advising the claimant of claimant's right to
have the decision reviewed by the Labor and Industrial Relations Commission,
and informing the claimant of the time for filing the petition for
review.
(I) A petition for review
must be filed with the Labor and Industrial Relations Commission within thirty
(30) days following the date of notification or mailing of such decision to the
claimant, as provided by section 537.690.1, RSMo, and such petition for review
shall be filed with the commission on a form provided for such purpose by the
commission.
(6) Procedure
for Payment of Awards on Claims Made During Initial Claims Period.
(A) On June 30, 2003, the division shall
determine the aggregated amount of all final, unappealable awards made on
claims filed during the initial claims period, and bearing case identification
numbers with the prefix "ICP." Any award that is not final as of June 30, 2003
(due to a pending petition for review before the commission, or due to a
pending appeal before the court of appeals) shall not be figured into this
determination, but shall be figured into the determination in the subsequent
annual claims period (if funds are available).
(B) If the aggregated amount of all final,
unappealable awards as of June 30, 2003 does not exceed the total amount of
money in the fund, the division shall cause the awards to be paid in full on or
before September 30, 2003. If the aggregated amount of all final, unappealable
awards as of June 30, 2003 exceeds the total amount of money in the fund, the
division shall cause the awards to be paid on a pro rata basis on or before
September 30, 2003.
(C) The
payments shall be made by check, payable to the claimant (or to such other
person or persons as may be specified in the award), and shall be sent by first
class mail, postage prepaid, to the claimant at the claimant's last known
address or to the last known address of the claimant's attorney or other legal
representative.
(7)
Procedure for Payment of Awards on Claims Made During an Annual Claims Period.
(A) On June 30 of the year following the
close of an annual claims period, the division shall determine the aggregated
amount of all final, unappealable awards made on claims filed during the annual
claims period, plus all final, unappealable awards made on claims filed during
any prior claims period but which were not included in the determination made
on June 30 of the year following the close of that claims period. Any award
that is not final as of the date of the determination (due to a pending
petition for review before the commission, or due to a pending appeal before
the court of appeals) shall not be figured into this determination, but shall
be figured into the determination in the subsequent annual claims period (if
funds are available).
(B) If the
aggregated amount of all final, unappealable awards as of June 30 of the year
following the close of an annual claims period does not exceed the total amount
of money in the fund, the division shall cause the awards to be paid in full on
or before September 30 of that year. If the aggregated amount of all final,
unappealable awards as of June 30 of the year following the close of an annual
claims period exceeds the total amount of money in the fund, the division shall
cause the awards to be paid on a pro rata basis on or before September 30 of
that year.
(C) The payments shall
be made by check, payable to the claimant (or to such other person or persons
as may be specified in the award), and shall be sent by first class mail,
postage prepaid, to the claimant at the claimant's last known address or to the
last known address of the claimant's attorney or other legal
representative.
(D) If there are no
funds available, the procedures set forth in section 537.684.9 and 10, RSMo
shall be followed.
(8)
Attorney's Fees. Sections
537.675 through
537.693, RSMo do not give the
division jurisdiction to allow, deny or otherwise regulate attorney's fees in
proceedings against the Tort Victims' Compensation Fund. Therefore, the
division shall make no rulings or findings regarding attorney's fees; however,
upon written request made to the division by the claimant, the division may
order that payment of any award be made jointly to the claimant and to the
claimant's attorney, in order to facilitate the payment of lawful attorney's
fees.
(9) Payor of Last Resort. The
Tort Victims' Compensation Fund is a payor of last resort. Therefore, the
division shall examine all other payment sources or potential payment sources
available to the claimant and shall take them into account when determining the
amount of the final award. Other payment sources may include, but are by no
means limited to, court-ordered restitution, medical insurance, life insurance,
disability insurance, premises liability insurance, uninsured motorist
coverage, underinsured motorist coverage, and workers' compensation
benefits.
(10) One (1) Claim per
Occurrence. Only one (1) claim may be brought against the Tort Victims'
Compensation Fund for the injury of any one (1) person arising out of any
occurrence or any causally related series of occurrences. Only one (1) claim
may be brought against the Tort Victims' Compensation Fund for the death of any
one (1) person. Those parties identified in section 537.681.1(2)(a) and (b)
must join in one (1) claim against the Tort Victims' Compensation Fund and must
prove their status to the satisfaction of the division and to the exclusion of
any other parties who might be eligible for compensation under section
537.681.1, RSMo.
(11) Legal
Disability of a Claimant. If any claimant is a minor, mentally or physically
incapacitated or disabled, the division may require that a conservatorship be
established and that any award be made payable to the conservator. In no
instance shall payment be made directly from the Tort Victims' Compensation
Fund to any person legally incompetent to receive such payment, but shall be
made instead to a parent, conservator, guardian or attorney-in-fact under a
durable power of attorney for the benefit of said person, as the division shall
order.
(12) Acts or Conduct of
Victim; Effect on Award. The division may consider the contributory fault,
comparative fault, or other acts or conduct of the victim in determining the
amount of the award, pursuant to sections 537.681.2 and 537.684.3(4),
RSMo.
(13) Unjust Enrichment.
(A) In determining whether an award against
the Tort Victims' Compensation Fund can be made without unjustly enriching a
tortfeasor, the division shall evaluate whether the tort victim can and will
prevent access by the tortfeasor to the proceeds of any award.
(B) An unjust enrichment determination shall
not be based solely on the presence of the tortfeasor in the household at the
time of the injury or death, or at the time of the award. The presence of the
tortfeasor in the household is only one (1) factor to be considered in
determining unjust enrichment, and the determination shall be made on a
case-by-case basis according to the unique facts and circumstances of each
case.
(14) Disclosure.
(A) No information obtained by the division
shall be disclosed to persons other than the parties to the proceedings, and
their attorneys, except by order of the division or the commission, but
information may be used for statistical purposes.
(B) A request to inspect, or to receive
copies of, any documents in the possession of the division as a result of a
claim made against the Tort Victims' Compensation Fund shall be made in writing
to the division's Jefferson City office.
(C) The charge for copies of documents shall
not exceed the actual cost of document search and duplication.
(D) Persons inspecting documents shall not
alter, deface or mark the documents in any manner.
(15) Mailings to Attorney. When a claimant is
represented by an attorney, the division shall make all mailings to both the
claimant and to the claimant's attorney.
Notes
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