H. B. 2822
(By Mr. Speaker, Mr. Kiss, and Delegates Jenkins,
Martin, Michael, Pulliam and Ashley)
[Introduced
January 14, 1998
; referred to the
Committee on the Judiciary.]
A BILL to amend the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by added thereto a new
chapter, designated chapter fifty-five-a, relating to
reformation of the civil justice system; stating legislative
findings and declarations of purposes; defining terms used
in chapter; regarding the recovery of punitive damages;
establishing what a plaintiff must prove and the trier of
fact must find before the trier of fact may award punitive
damages; stating circumstances when punitive damages may not
be awarded and a defendant may not be held liable for
punitive damages; limiting the amount of punitive damages
that may be awarded; imposing limits on multiple punitive
damages awards for the same course of conduct; providing for
the bifurcation of a civil action in which punitive damages are sought when requested by a defendant; specifying the
kind of evidence that a trier of fact may not consider in
determining the defendant's liability for, or the amount of,
punitive damages; providing for the allocation of punitive
damage awards among the state, the plaintiff, and the
plaintiff's attorneys; stating the conditions under which
punitive damages may be assessed against a principal or
employer for an act of an agent or employee and against an
association, limited liability entity, or partnership for
the acts of a member or partner; predicating actions for
damages upon principles of comparative fault; establishing
the comparative fault standard; abolishing joint liability;
describing how to consider the fault of nonparties;
describing how to consider the fault of, and the amounts
paid by, settling parties; providing for the use of special
interrogatories; defining the concept and applicability of
the doctrine of assumption of the risk; establishing an
irrebuttable presumption of knowledge regarding certain
warnings; allowing the assessment of a percentage of fault
for failing to take reasonable precautionary measures that
are available; precluding recovery by a plaintiff injured
while involved in a felony criminal act; precluding the
allocation of fault to a person such as a seller, distributor, or installer on a strict product liability
theory where that person did not contribute to the alleged
defect; providing for the burden of proof and limitations;
reducing damage awards by collateral source payments;
providing how such reductions shall be determined; stating
the effects of such determinations upon the trial; providing
for a statute of repose; imposing limitations upon amounts
that may be recovered for noneconomic losses; requiring
courts to approve the reasonableness of contingent fees
after taking into consideration certain factors; and
providing for repeal of conflicting laws, and the
applicability of the Civil Justice Reform Act of 1997.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new
chapter, designated chapter fifty-five-a, to read as follows:
CHAPTER 55A.
CIVIL JUSTICE REFORM ACT OF 1997.
ARTICLE 1. SHORT TITLE; LEGISLATIVE FINDINGS AND DECLARATION OF PURPOSES; DEFINITIONS.
§55A-1-1. Short title.
This chapter shall be known and may be cited as the "Civil
Justice Reform Act of 1997."
§55A-1-2. Legislative findings and declaration of purposes.
(a) The Legislature hereby finds and declares that the civil
liability law of the state should be reformed in order to curtail
or eliminate clear social and economic problems associated with
(1) a common law that imposes no limits on amounts that may be
awarded in punitive damages and for noneconomic losses; (2)
a common law that allows punitive damages to be awarded pursuant
to vague, subjective, elastic, and often retrospective standards
of liability; (3) a common law that is essentially standardless
in determining the amount of punitive damages and noneconomic
losses that may be assessed; (4) a common law that tolerates
excessive, arbitrary, and unpredictable punitive and noneconomic
loss damage awards; (5) a common law that is fundamentally unfair
in allowing multiple or repeated punishment through punitive
damage awards for what is essentially the same conduct (which may
endanger the ability of future claimants to receive compensation
for actual economic and noneconomic losses); (6) a common law
that allows a plaintiff a windfall from punitive damages awards,
which have as their object the punishment of the defendant for
certain conduct and the deterrence of the defendant from like
conduct in the future; (7) a common law that denies to the public
any sharing of damage awards to punish and deter; (8) a common
law that is unjust and unfair in making one defendant jointly
liable for the total damages assessed against multiple defendants even though that one defendant may have been as little as one
percent at fault in causing plaintiff's injuries; (9) a common
law which, in imposing joint liability, often causes
municipalities, volunteer groups, nonprofit organizations,
property owners, and large and small businesses to be brought
into litigation despite the fact that their conduct had little or
nothing to do with the accident or transaction giving rise to the
lawsuit; (10) a common law that permits a seller or distributor
of a product to be held liable for a defect in its design or
manufacture even though the seller or distributor did not cause
or contribute to the defect; (11) a common law that denies any
reduction in damage awards for compensatory payments received
from collateral sources such as workers compensation and employer
or private disability programs; (12) a common law which allows
lawsuits to be brought for a claimed defective product made ten,
twenty, thirty, or more years ago, and (13) a common law that
allows the exaction by lawyers representing plaintiffs of
contingent fees without limit and without supervision of the
courts.
(b) The Legislature further finds and declares that the
foregoing civil liability law of the state as made or allowed by
the courts, rather than having been enacted by the Legislature,
has resulted, or may result, in excessive, unpredictable, and often arbitrary damage awards and unfair allocations of liability
that (1) adversely affect the ability of the state to retain jobs
and attract new employers; (2) cause the withdrawal of products,
producers, services, and service providers from the marketplace
and result in excessive liability costs that are passed on to
consumers through higher prices; (3) cause defendants, including
boards of education and other governmental agencies, to settle
cases out of fear of large verdicts rendered pursuant to the
civil liability laws and in order to avoid the high costs,
inconvenience, and uncertainty of litigation; (4) jeopardize
the financial well-being and security of many individuals,
small businesses, and even entire industries, and adversely
affect government and taxpayers; (5) undermine the ability of
companies in West Virginia to compete nationally and
internationally, and decrease the number of jobs and the amount
of production capital in the state's economy; (6) cause citizens
and small businesses to live in fear of lawsuits against them
wherein they may be bankrupted or driven out of business by legal
fees and expenses in defending them and by exorbitant settlements
extorted by threat of trials that have taken on the
characteristics of a lottery; and (7) add to the high cost of
liability insurance, making it difficult for individuals,
producers, consumers, volunteers, and nonprofit organizations to protect themselves with any degree of confidence at a reasonable
cost.
(c) The Legislature further finds and declares that there
exist, for the foregoing reasons, clear social and economic
problems associated with our civil justice system and a need to
correct those problems by restoring rationality, certainty, and
fairness to the civil justice system through the enactment of the
Civil Justice Reform Act of 1997.
55A-1-3. Definitions.
As used in this chapter:
(1) "Actual malice" means specific intent to cause personal
injury, death, or damage to property.
(2) "Collateral source" means (a) the United States Social
Security Act as amended; (b) any state or federal disability,
workers compensation, or other act designed to provide income
replacement, medical, or other benefits; (c) any accident, health
or sickness, income or wage replacement insurance, income
disability insurance, casualty or property insurance (including
automobile and homeowners' insurance), or any other insurance
except life insurance; (d) any contract or agreement of any
group, organization, partnership, or corporation to provide, pay
for, or reimburse the cost of medical, hospital, dental, or other
health care services or provide similar benefits; or (e) any contractual or voluntary wage continuation plan provided by an
employer or otherwise, or any other system intended to provide
wages during a period of disability.
(3) "Collateral source payments" means money paid or payable
by collateral sources for losses or expenses including, but not
limited to, property damage, wage loss, medical costs,
rehabilitation costs, services, and other costs incurred by or on
behalf of a plaintiff for which that plaintiff is claiming
recovery through a tort action commenced in any of the courts in
this state.
(4) "Comparative fault" means the degree to which the fault
of a person was a proximate cause of an alleged personal injury
or death or damage to property, expressed as a percentage.
(5) "Compensatory damages" means money awarded to compensate
a plaintiff for economic and noneconomic loss.
(6) "Contingent fee" means the fee negotiated in a
contingent fee agreement which is only payable from the proceeds
of any recovery on behalf of a plaintiff.
(7) "Contingent fee agreement" means a fee agreement between
a lawyer and a plaintiff wherein the lawyer agrees to bear the
risk of no or inadequate compensation in exchange for a
proportionate share of part or all of any recovery by settlement
or verdict obtained for the plaintiff.
(8) "Damage" or "damages" means pain, suffering,
inconvenience, physical impairment, disfigurement, mental
anguish, emotional distress, loss of enjoyment of life, loss of
society and companionship, loss of consortium, injury to
reputation, humiliation, loss of earnings and earning capacity,
loss of income, medical expenses and medical care, rehabilitation
services, custodial care, wrongful death, burial costs, loss of
use of property, costs of repair or replacement of property,
costs of obtaining substitute domestic services, loss of
employment, loss of business or employment opportunities, lost
profits, and other such losses to the extent that recovery for
such is allowable under any present, applicable state law. It
does not include punitive damages.
(9) "Defendant" means, for purposes of determining an
obligation to pay money to another under this chapter, any person
against whom a claim is asserted by a plaintiff.
(10) "Economic loss" means objectively verifiable monetary
losses, such as medical expenses, loss of earnings and earning
capacity, cost of replacement services, loss of income stream due
to death, burial costs, loss of business or employment
opportunities, lost profits, and loss due to property
destruction or damage, to the extent recovery for any such
monetary loss is allowed under any present applicable state law.
(11) "Fault" means an act or omission of a person which is
a proximate cause of injury or death to another person or
persons, damage to property, or economic injury, including, but
not limited to, negligence, malpractice, medical professional
liability, strict product liability, absolute liability,
liability under section two, article four, chapter twenty-three
of this code, or assumption of the risk as described in section
four, article three of this chapter.
(12) "Noneconomic loss" means subjective, nonmonetary
losses, such as pain, suffering, inconvenience, mental anguish,
emotional distress, loss of enjoyment of life, loss of society
and companionship, loss of consortium, injury to reputation, and
humiliation, to the extent recovery for any such nonmonetary loss
is allowed under any present, applicable state law.
(13) "Person" means any individual, corporation, company,
association, firm, partnership, society, joint stock company, or
other entity, including any governmental entity or unincorporated
association.
(14) "Plaintiff" means, for purposes of determining a right
to recover under this chapter, any person asserting a claim.
(15) "Product" means any object, substance, mixture, or raw
material in a gaseous, liquid, or solid state (a) which is
capable of delivery itself or as an assembled whole, in a mixed or combined state, or as a component part or ingredient; (b)
which is produced for introduction into trade or commerce; (c)
which has intrinsic economic value; and (d) which is intended for
sale or lease for commercial or personal use. The term "product"
does not include (a) human tissue, human organs, human blood, and
human blood products; (b) electricity, water delivered by a
utility, natural gas, or steam; or (c) intellectual property,
including computer software.
(16) "Product liability action" means a civil action brought
against any defendant, including defendants who did not
manufacture or sell a product, on any theory for damage caused by
a product.
ARTICLE 2. PUNITIVE DAMAGES.
§55A-2-1. General rule.
Punitive damages may be awarded in a civil action against a
defendant only if the plaintiff establishes beyond a reasonable
doubt that the damages suffered were the result of conduct that
was carried out with actual malice by the defendant toward the
plaintiff. Punitive damages may not be awarded on a claim for
breach of contract or in any action other than a civil action
seeking money for damages and unless compensatory damages have
been awarded against a defendant to the plaintiff for the same
course of conduct of the defendant. A defendant may not be held liable for punitive damages unless the trier of fact finds that
its award of compensatory damages alone is not sufficient to
punish the defendant for the conduct and to deter the defendant
from like conduct in the future.
§55A-2-2. Proportional awards.
The amount of punitive damages that may be awarded for a
claim in a civil action shall not exceed two times the amount of
money awarded to the plaintiff for the economic loss on which
such claim is based, or two hundred fifty thousand dollars,
whichever is less. This provision shall be applied by the trial
court and shall not be disclosed to the jury. If a jury returns
a verdict for punitive damages against the defendant in excess of
these limitations, the trial court shall reduce the award so that
it will not exceed the limitations.
§55A-2-3. Multiple awards.
If the jury returns a verdict of punitive damages against a
defendant in the case at bar and if the total amount of any prior
punitive damages awards obtained by the same or other plaintiffs
in any state or federal court against that defendant for the same
course of conduct as alleged in the case at bar exceeds two times
the amount of money awarded to the plaintiff in the case at bar
for economic losses, or two hundred fifty thousand dollars,
whichever is less, then no punitive damages may be awarded against that defendant in the case at bar. If the total amount
of any such prior punitive damages awards is less than two times
the amount of money awarded the plaintiff for economic losses in
the case at bar or two hundred fifty thousand dollars, whichever
is less, then the amount of any punitive damages award in the
case at bar shall be reduced so that the combined total amount of
punitive damages awarded in the case at bar and such prior
actions shall not exceed two times the amount of money awarded to
the plaintiff for economic losses in the case at bar, or two
hundred fifty thousand dollars, whichever is less. This
provision shall be applied by the trial court and shall not be
disclosed to the jury.
§55A-2-4. Bifurcation.
In a civil action in which punitive damages are sought, the
court shall bifurcate the trial of the action if requested by a
defendant. In the first stage of a bifurcated trial, the trier
of fact shall determine liability for compensatory damages, and
the amount of compensatory damages. If the trier of fact
determines during the first stage of a bifurcated trial that a
defendant is liable for compensatory damages, then the court
shall determine whether the evidence was sufficient to permit the
jury to consider punitive damages. If determined sufficient,
that same trier of fact shall determine, in a second stage of the trial, whether the defendant is liable for punitive damages and,
if applicable, the amount of punitive damages that should be
awarded. If a bifurcated proceeding is requested, evidence
relevant only to the claim of punitive damages shall be
inadmissible in the first stage of the trial.
§55A-2-5. Other alleged wrongs.
Evidence of other crimes, wrongs, or acts of a defendant
shall not be admitted or considered in determining the
defendant's liability for, or the amount of, punitive damages.
§55A-2-6. Sharing of punitive damage awards.
Since the object of a punitive damage award is to punish the
defendant for certain conduct and to deter the defendant and
others from engaging in such conduct in the future, the entire
award should not be a windfall to the plaintiff but should be
shared by the public. The state's share of each such award shall
be payable to the crime victims compensation fund established by
the provisions of article two-a, chapter fourteen of this code.
The state's share of each punitive damage award shall be
forty-five percent thereof after the deduction of reasonable
expenses, other than attorney's fees, that are directly related
to the obtaining of the punitive damage award. The state shall
have no interest in or right to intervene at any stage of any
judicial proceeding involving a claim for punitive damages. In the event the full amount of punitive damages awarded cannot be
collected, the state, the plaintiff, and the plaintiff's
attorneys if sharing therein, shall each be entitled to a
proportional share of the punitive damages collected. The fact
that a share of each punitive damages award is to be paid to the
state shall not be made known to, or considered by, the trier of
fact in determining the amount of a punitive damages
award.
If the plaintiff's attorney's fees are payable from a
punitive damages award, the attorney's share of a punitive
damages award shall be no more than ten percent of the
plaintiff's share of a punitive damage award as approved by the
court after the deduction of reasonable expenses, other than
attorney's fees, that are directly related to the obtaining of
the punitive damages award.
§55A-2-7. Complicity rule.
A principal or employer who is a natural person may be
liable for punitive damages as a result of conduct of his/her
agent or employee only when the plaintiff proves beyond a
reasonable doubt that such principal or employer had actual
malice toward the plaintiff and expressly commanded or expressly
authorized the exact conduct in question. A principal or
employer that is other than a natural person may be liable for punitive damages as a result of the conduct of its agent or
employee only when the plaintiff proves beyond a reasonable doubt
that a senior manager of such principal or employer having
express and actual authority to command and authorize conduct on
behalf of the principal or employer had actual malice toward the
plaintiff and expressly commanded or expressly authorized the
exact conduct in question. An association, limited liability
company, or partnership may be liable for punitive damages as a
result of the conduct of its member or partner only when the
plaintiff proves beyond a reasonable doubt that a senior manager
of such association, limited liability company, or partnership,
having express and actual authority to command and authorize
conduct on behalf of the association, limited liability company,
or partnership had actual malice toward the plaintiff and
expressly commanded or expressly authorized the exact conduct in
question.
ARTICLE 3. COMPARATIVE FAULT.
§55A-3-1. Comparative fault standard established.
In any action for damages, recovery shall be predicated upon
principles of comparative fault and the liability of each person
who caused the damages shall be allocated to each person in
direct proportion to that person's percentage of fault. Where
the percentage of fault chargeable to the plaintiff is less than the aggregate fault of all defendants and nonparties, the
plaintiff may recover compensatory damages, but the plaintiff's
recovery of compensatory damages shall be diminished in
proportion to the percentage of fault chargeable to the
plaintiff. Where the plaintiff's percentage of fault is equal to
or exceeds the aggregate fault of all defendants and nonparties,
the plaintiff shall be barred from any recovery.
The total of the percentages of comparative fault allocated
by the trier of fact with respect to a particular incident or
injury must equal either zero percent or one hundred percent.
§55A-3-2. Several liability.
In any action for damages the liability of each defendant
for compensatory damages shall be several only and shall not be
joint. Each defendant shall be liable only for the amount of
compensatory damages allocated to that defendant in direct
proportion to that defendant's percentage of fault and a separate
judgment shall be rendered against the defendant for that amount.
To determine the amount of judgment to be entered against each
defendant, the court, with regard to each defendant, shall
multiply the total amount of compensatory damages recoverable by
the plaintiff by the percentage of each defendant's fault and
that amount shall be the maximum recoverable against said
defendant.
§55A-3-3. Fault of nonparties.
(a) In assessing percentages of fault the trier of fact
shall consider the fault of all persons who contributed to the
alleged damages regardless of whether such person was or could
have been named as a party to the suit. Such fault shall include
the fault imputed or attributed to a person by operation of law,
if any. Fault of a nonparty may be considered if the plaintiff
entered into a settlement agreement with the nonparty or if a
defending party gives notice no later than sixty days before the
date of trial that a nonparty was wholly or partially at fault.
The notice shall be given by filing a pleading or discovery
response in the action designating such nonparty and setting
forth such nonparty's name and last-known address, or the best
identification of such nonparty which is possible under the
circumstances, together with a brief statement of the basis for
believing such nonparty to be at fault. In all instances where
a nonparty is assessed a percentage of fault, any recovery by a
plaintiff shall be reduced in proportion to the percentage of
fault chargeable to such nonparty. Where a plaintiff has settled
with a party or nonparty before verdict, that plaintiff's
recovery will be reduced by the amount of the settlement or in
proportion to the percentage of fault assigned to the settling
party or nonparty, whichever is greater. The plaintiff shall promptly and fully inform all other persons against whom
liability is asserted of the terms of any such settlement.
(b) Nothing in this article is meant to eliminate or
diminish any defenses or immunities which exist as of the
effective date of this article, except as expressly noted herein.
Assessments of percentages of fault for nonparties are used only
as a vehicle for accurately determining the fault of named
parties. Where fault is assessed against nonparties, findings of
such fault shall not subject any nonparty to liability in that or
any other action, or be introduced as evidence of liability or
for any other purpose in any other action.
(c) In all actions involving fault of more than one person,
unless otherwise agreed by all parties to the action, the court
shall instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings, indicating:
(1) The amount of money that each person making a claim
would be entitled to recover if comparative fault is disregarded;
and
(2) The percentage of the total fault that is allocated to
each party and nonparty pursuant to the provisions of this
article. For this purpose the court may determine that two or
more persons are to be treated as a single person.
§55A-3-4. Assumption of the risk.
(a) Assumption of the risk shall operate as a complete bar
to an action when the injured person:
(1) Expressly, in writing or orally, assumed the risk of
injury; or
(2) Had knowledge of the risk, as proven by actions,
statements, or direct testimony, yet undertook or continued the
activity that constituted exposure to the risk.
(b) In situations not covered by section four-a, but where
reasonably prudent persons would have realized the risk before
exposing themselves to it, assumption of the risk shall be
considered as a factor in apportioning fault.
(c) In all cases involving products, structures, or services
where a warning has been provided concerning the product,
structure, or service, including any warning required or approved
by a federal or state government body or regulatory agency, proof
of the existence of the warning will create an irrebuttable
presumption that the plaintiff knew of the warning's content.
§55A-3-5. Imputed fault.
Nothing in this article may be construed as precluding a
person from being held responsible for the portion of comparative
fault assessed against another person who was acting as an agent
or servant of such person, or if the fault of the other person is
otherwise imputed or attributed to such person by statute or common law.
§55A-3-6. Failure to take reasonable precautionary measures.
In any civil action, the finder of fact may assess a
percentage of fault against a plaintiff who is injured as a
proximate result of that plaintiff's failure to take reasonable
precautionary measures that are available, such as wearing a
seatbelt, even if such failure is not a proximate cause of the
accident.
§55A-3-7. Plaintiff involved in felony criminal act.
In any civil action, a defendant is not liable for damages
that the plaintiff suffers as a result of the negligence or gross
negligence of a defendant while the plaintiff is attempting to
commit, committing, or fleeing from the commission of a felony
criminal act.
§55A-3-8. Fault of person not a manufacturer.
A person who is not the manufacturer of a product but is
merely in the chain of its distribution, such as a seller,
distributor, or installer, and who did not alter, change or
modify the product in a way that created or contributed to the
alleged defect, may not be assessed a percentage of comparative
fault under the theory of strict product liability for accidents,
injuries or damages proximately caused, in whole or in part, by
the product.
§55A-3-9. Burden of proof.
The burden of alleging and proving comparative fault shall
be upon the person who seeks to establish such fault.
§55A-3-10. Limitations.
Nothing in this article may be construed to create a cause
of action. Nothing in this article may be construed, in any way,
to alter the immunity of any person as established by statute or
common law.
ARTICLE 4. COLLATERAL SOURCES.
§55A-4-1. Reduction in compensatory damages for collateral
sources payments.
Notwithstanding any other provision of this code, in all
tort actions, regardless of the theory of liability under which
they are commenced, the total amount of compensatory damages
awarded to a plaintiff under such action shall be reduced, in
accordance with section two of this article, by any collateral
source payments made or to be made to the plaintiff.
§55A-4-2. Pretrial determination of reduction in compensatory
damages.
The reduction in compensatory damages required under section
one of this article shall be determined by the court in a
pretrial proceeding. In such proceeding the court shall allow
the introduction of evidence of collateral source payments which have already been made or which are reasonably certain to be made
to a plaintiff as compensation for the same damages for which
recovery is sought in the action. In addition, a plaintiff who
has received or is to receive collateral source payments may
introduce evidence of any of the following: (a) Any amount which
the plaintiff has paid or contributed to secure his right to any
such collateral source payments; (b) that any recovery by the
plaintiff is subject to a lien by a collateral source; (c) that
a provider of such collateral source payments has a statutory
right of recovery against the plaintiff for reimbursement of
such payments; or (d) that the provider of such collateral source
payments has a right of subrogation to the rights of the
plaintiff.
After considering the evidence introduced in the pretrial
proceeding, the court shall make a determination as to the amount
by which a plaintiff's compensatory damages will be reduced by
any such collateral source payments. Thereafter, at trial
(a) No evidence shall be admitted as to the amount of any
charges, payments, or losses for which a plaintiff (i) has
received payment from a collateral source or the obligation for
which has been assumed by a collateral source, or (ii) is, or
with reasonable certainty will be, eligible to receive payment
from a collateral source or the obligation for which will, with reasonable certainty, be assumed by a collateral source; and
(b) The jury, if any, shall be advised that (i) except for
amounts as to which the court permits the introduction of
evidence, the plaintiff's medical expenses and lost income has
been or will be paid by a collateral source; and (ii) the
plaintiff shall receive no award for any amount of compensatory
damages that has been or will be paid by a collateral source, as
determined in the pretrial proceeding.
ARTICLE 5. STATUTE OF REPOSE.
§55A-5-1. Statute of repose.
No claim may be brought against any defendant in any civil
action if either (a) with respect to all civil actions, including
product liability actions, the claim is based, in whole or in
part, on any act or omission of that particular defendant that
occurred more than ten years before the claim was brought, or (b)
with respect to product liability actions only, the claim is
brought more than ten years after the date of delivery of the
product which caused the plaintiff's injury to the first
purchaser or lessee of the product.
ARTICLE 6. LIMIT ON DAMAGES FOR NONECONOMIC LOSS.
§55A-6-1. Limit on damages for noneconomic loss.
Damages for noneconomic loss shall not be recoverable in any
action except as follows:
(1) A plaintiff may recover damages for noneconomic loss
only in the types of civil actions in which such damages were
authorized at the time that this bill became a law;
(2) In civil actions based on physical injury, the plaintiff
who experienced the physical injury on which the action is based
and all plaintiffs who derive their claims from or through the
plaintiff who experienced the physical injury on which the action
is based may recover damages for noneconomic loss in a total
amount for all such plaintiffs not to exceed one million dollars
regardless of the number of parties against whom the action is
brought or could have been brought or the number of claims
asserted or actions brought or that could have been asserted or
brought with respect to the injury;
(3) In all actions other than those based on physical injury
in which damages for noneconomic loss were authorized to be
recovered at the time this bill became a law, the plaintiff who
experienced the economic loss on which the action is based and
all plaintiffs who derive their claims from or through the
plaintiff who experienced the economic loss on which the action
is based may recover damages for noneconomic loss in a total
amount for all such plaintiffs no greater than the award of
damages for economic loss or one million dollars, whichever is
less, regardless of the number of parties against whom the action is brought or could have been brought or the number of claims
asserted or actions brought or that could have been asserted or
brought with respect to the economic loss.
As used in this section, "physical injury" means an actual
injury to the body proximately caused by the act complained of
and does not include physical symptoms of the mental anguish or
emotional distress for which recovery is sought when such
symptoms are caused by, rather than the cause of, the pain,
distress or other mental suffering.
ARTICLE 7. COURT APPROVAL OF CONTINGENT FEES.
§55A-7-1. Court approval of contingent fees.
The court shall develop a record for review and, after
hearing, make findings and determine the reasonableness of all
contingent fees. The factors to be considered in determining the
reasonableness of a contingent fee include, but are not limited
to (a) risk or uncertainty of recovery; (b) the time and labor
required; (c) the novelty and difficulty of the question
involved; (d) the relief sought and results obtained; (e) the
experience, reputation, and ability of the lawyer or lawyers
performing the services; and (f) such other factors as the court
deems appropriate under the circumstances.
ARTICLE 8. CONFLICTING LAWS REPEALED, APPLICABILITY.
§55A-8-1. Conflicting laws repealed.
This chapter supersedes, invalidates and repeals all other
state laws which conflict with its provisions.
§55A-8-2. Applicability.
This chapter applies to all causes of action arising on or
after the effective date of this chapter.
NOTE: The purpose of this bill is to reform the civil
justice system.
This chapter is new; therefore, strike-throughs and
underscoring have been omitted.