Bill Summary for S 674 (2011-2012)

Summary date: 

Apr 19 2011

Bill Information:

View NCGA Bill Details2011-2012 Session
Senate Bill 674 (Public) Filed Tuesday, April 19, 2011
Intro. by Brunstetter.

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Bill summary

Creates new GS Chapter 1F, titled “Apportionment of Tort Responsibility Act.” Act requires trier of fact in tort action in which injured party is entitled to recover damages from more than one party to determine: 1) total amount of damages and (2) percentage of responsibility for injury attributable to each defendant (totaling 100%). Provides that percentage of responsibility is to be determined based on the nature of each person’s conduct and the degree to which each person’s conduct caused damages. Subject to listed exceptions (including contrary provisions of any other statute), directs entry of judgment against defendants severally. Provides that parties who are jointly and severally liable under other statutes have right of contribution based on allocation of responsibility made by trier of fact, unless person seeking contribution acted intentionally and other person acted negligently (in which case, intentional wrongdoer has no right to contribution).
In instances of vicarious liability, in which responsibility of one person is based on act of another, court must determine extent to which those two parties should be treated as a single party for apportionment purposes. In the case of vicarious liability, parties are jointly and severally liable for their joint share, and person who is vicariously liable has right of indemnification against party whose act resulted in injury.
Allows claims for contribution or indemnification to be brought in original action or independent action. Specifies that independent action is permissible even if joint tortfeasor’s liability was not determined in original action. Authorizes alleged tortfeasor in original action to join persons not a party who are liable for injury to claimant.
Provides that a release of liability by claimant as to one tortfeasor discharges that tortfeasor from liability to the claimant and from liability for contribution, but has no effect on liability of other tortfeasor. Provides that other tortfeasor is subject to claim for reduced amount based on amount of total award reduced by percentage of responsibility attributed to released tortfeasor. Prohibits released tortfeasor from seeking contribution.
Contains provisions for application of new law to cases in which liens or rights of subrogation are asserted pursuant to workers’ compensation statute (GS 97-10.2) or obligations of the state to national guardsman under GS 127A-110. Amends GS 99B-1.1 to provide that new Act applies to product liability actions in which more than one party is responsible for injury. Makes similar change to GS 28A-18-2, in connection to wrongful death actions. Makes conforming changes to GS 1B-1 (governing contribution) and GS 143-300.1B (Tort Claims Act).
Creates new GS Chapter 38B, titled “Trespasser Responsibility Act.” Provides that a possessor of land owes no duty of care to trespassers and is not liabile for their injuries, subject to two exceptions: (1) A possessor of land may be liable for intentionally inflicted harm or willful and wanton conduct. Provides that this exception does not apply if possessor used reasonable force against trespasser who enters with intent to commit a crime. (2) A possessor of land may be liable to a child trespasser (under 14, or having a commensurate level of mental development) injured by an artificial condition. This liability exists only if possessor should have known both that children were likely to trespass and that doing so exposed them to an unreasonable risk of harm, and nevertheless failed to act to protect them. In addition, the possessor of land is not liable if the child discovered the condition or realized the risk and nevertheless proceeded.
Creates new Article 7D in GS Chapter 8 (Evidence), titled “Admissibility of Collateral Source Payments.” Requires a court to admit into evidence upon defendant’s request collateral source payments actually paid or otherwise available to the plaintiff for injuries forming the subject of the complaint. Defines “collateral source payments” to include payments made or otherwise available to the plaintiff for (1) medical expenses and disability payments under Social Security, federal, state, or local disability programs, or other public programs; (2) insurance benefits, other than life insurance; (3) payments pursuant to any agreement with a person or business to provide, pay for, or reimburse medical expenses; (4) payments by an employer or other entity under wage continuation plan; and (5) payments from any other source other than gifts, or arising from plaintiff’s assets. Plaintiff has the right to introduce evidence that collateral source has a right of subrogation, and of costs involved in securing right to payments.
Evidence of medical expenses. Adds new Rule 414 to GS Chapter 8C, Article 4, allowing past medical expenses to be proved by paid medical bills and statements of other amounts owed. Allows evidence of source of payment and associated rights of subrogation to be admitted into evidence.
Expert testimony. Amends GS 8C-702(a) to limit expert testimony to those situations in which the testimony (a) is based on sufficient facts, (b) is the product of reliable principles and methods, and (c) results from a reliable application of the principles and methods to the facts.
Counsel fees as part of costs. Rewrites GS 6-21.1 as follows: A trial judge in an action for personal injury or property damage, or brought against an insurance company for payment on a policy, has discretion to award attorneys’ fees up to the higher of $5,000 or 50% of the awarded damages only upon finding (1) that the defendant refused to negotiate or pay the claim (currently, “pay the claim”), and that this refusal was unwarranted; (2) that the amount of damages awarded was $15,000 (currently, $10,000) or less; and (3) that the damages recovered exceeded the highest offer made by the defendant as of 30 days before trial began. Specifies the detailed nature and content of the required findings.
Applies to causes of action brought on or after October 1, 2011.

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