House committee substitute makes the following changes to 1st edition. Replaces original bill with AN ACT TO ESTABLISH A BLUE RIBBON COMMISSION TO STUDY THE NEED FOR TORT REFORM. As title indicates. Establishes a 25-member Commission, as detailed. Commission to make interim report to the 2012 Regular Session of the 2011 General Assembly and a final report to the 2013 General Assembly. Effective July 1, 2011.
Bill Summaries: H732 STUDY TORT REFORM (NEW).
Bill H 732 (2011-2012)Summary date: Jun 8 2011 - View Summary
Bill H 732 (2011-2012)Summary date: Apr 6 2011 - View Summary
Enacts a new GS Chapter 1F to establish the North Carolina Apportionment of Tort Responsibility Act. Defines contributory fault as contributory negligence, misuse of a product, unreasonable failure to avoid or mitigate harm, and assumption of risk unless the risk is expressly assumed in a legally enforceable release or similar agreement. Defines released person as a person that would be liable for damages if the person had not been discharged from liability under proposed GS 1F-35 (Effect of release), GS 1F-40 (Reduction of worker’s compensation lien and subrogation right), or GS 1F-45 (Reduction of state’s lien and subrogation right). Also includes definitions for the following: (1) intentional wrongful conduct, (2) nonpunitive damages, (3) party, (4) person, (5) property, (6) responsibility, and (7) willful or wanton conduct.
Provides that in an action seeking damages for personal injury, wrongful death or harm to property based on negligence or on any other tort claim for which the claimant may be subject to a defense in whole or part based on contributory fault, the claimant’s recovery is diminished by the percentage of responsibility assigned to the claimant, or in a wrongful death case, the decedent, pursuant to proposed GS 1F-15. Prohibits the claimant from recovering any damages if the contributory fault is greater than the combined responsibility of all parties and released persons that caused the injury or harm to the claimant; however, provides an exception that any contributory fault attributable to the claimant, or in a wrongful death claim, to the decedent, does not diminish the amount the claimant would otherwise recover as damages against any party whose intentional wrongful conduct resulted in injury, wrongful death, or harm to property giving rise to the claim. Provides additional guidelines regarding the effect of contributory fault on the claimant’s right to recover damages. Requires the court to instruct the jury in a jury trial as to the legal effect of its findings made under proposed GS 1F-15 (finding damages; attribution of responsibility) on a claimant’s right to recover damages.
Requires that in an action to recover damages for personal injury, wrongful death, or harm to property involving the responsibility of more than one party, released person, or in a wrongful death claim the decedent, the trier of fact must make the following findings: (1) state the amount of damages that a claimant, or in a wrongful death claim, the decedent, would be entitled to recover if any contributory fault was disregarded; (2) state, as to each claim, the percentage of total responsibility attributed to each party, released person, and in a wrongful death claim, the decedent, which caused the injury or harm, with the total of all percentages being equal to 100%; and (3) any other issue of fact fairly raised by the evidence which is necessary to make a determination of the damage award or to enter or modify a judgment. Provides that the trier of fact consider the nature of the conduct and the extent of the causal relation between the conduct and the damages claimed when determining the percentages of responsibility. Requires the court to determine the extent to which the responsibility of one party, which is based on the conduct of another party, warrants that the parties be treated as a single party. Provides that nothing in this section alters the right of any party to move for a separate trial of any issue or claim pursuant to GS 1A-1, Rule 42(b).
Requires that after the trier of fact has made findings under GS 1F-15, the court is to determine the monetary amount of any award of damages to the claimant, the amount of the several share for which each party found responsible is liable, and any amount attributable to a released person. Also provides criteria under which the court may reassign any percentage of contributory fault attributed to a claimant, or in a wrongful death claim, the decedent to any party or released person whose intentional wrongful conduct resulted in the injury, wrongful death, or harm to property giving rise to the claim. Requires the court to enter the judgment severally against each party adjudged liable, except in specified circumstances where the court may enter a judgment jointly and severally against the parties, and allows for modification of the judgment if the damages are reallocated.
Provides for a third-party action, allowing a party subject to liability for personal injury, wrongful death, or harm to property under GS Chapter 1F (1) to join a person that is also subject to liability and (2) to prevent, by objecting, the voluntary dismissal of any party who is not a released person. Provides that the provisions of Article 1 of GS Chapter 1B do not apply against parties against whom judgment is entered severally and not jointly under GS Chapter 1F.
Provides that a release, covenant not to sue, covenant not to execute a judgment, or similar agreement discharges the person, as well as any other person expressly provided for in the agreement, from liability and liability for contribution. Provides that if an employer or workers’ compensation insurer asserts a lien or right of subrogation under GS 90-10.2, the employer is deemed to have had its obligation to the employee for the compensation benefits paid or payable discharged as if the employer or insurer received a release, covenant not to sue, covenant not to execute a judgment, or similar agreement with the employee. An employee that asserts that the lien or right of subrogation should be reduced because of the employer’s fault must give notice to the employer or insurer so that they may intervene in the employee’s action for personal injury. Provides that nothing in this section is intended to diminish or increase the rights and obligations under GS 97-10.2(j) (rights and remedies against third parties). Provides that if the State asserts a lien or right of subrogation under GS 127A-110, the State is deemed to have had its obligation to the guardsman for the compensation benefits paid or payable discharged as if the State received a release, covenant not to sue, covenant not to execute a judgment, or similar agreement with the guardsman. A party that asserts that the lien or right of subrogation should be reduced because of the State’s fault must give notice to the State so that they may intervene in the employee’s action for personal injury. Provides that nothing in GS Chapter 1F modifies existing law governing apportionment of damages resulting from divisible injuries.
Amends GS 8-58.1 to provide that the amount paid for medical treatment plus the amount of unpaid medical expenses necessary to discharge the liability to the service provider establishes a rebuttable presumption that the amount is reasonable in any action to recover damages for personal injury or wrongful death in which parties may introduce evidence of past medical expenses. Adds new Rule 414 to Article 4 of GS Chapter 8C to provide that in any action to recover damages for personal injury or wrongful death, evidence offered to prove past damages for medical expenses is limited to the amounts necessary to discharge the liability incurred by or on behalf of the injured party. Does not limit the admissible evidence to prove the reasonable value of volunteer services provided to an injured party.
Enacts new GS 143-300.1B to provide that in tort claims against state departments and agencies where liability is based upon acts or omissions that constitute contributory fault, the provisions of GS Chapter 1F apply.
Makes conforming changes to the following: GS 1-139, 1A-1, Rule 8(c), 1B-1, 20-135.2A, 20-137.4(f), 28A-18-2, 99B-1.1, 99C-4, 143-291(a), and 143-299.1.
Repeals GS 20-137.1(d)(4), GS 20-171.9(c) (regarding negligence and liability pertaining to bicycle helmet and restraining seat use) and GS 99B-4 (liability in product liability action).
Effective January 1, 2012, and applies to actions accruing on or after that date.