Senator Massey proposes the following amendment (SR-244.CEM0067S):

Amend the bill, as and if amended, SECTION 1.A., by striking Section 15-38-15(A) and inserting:

 (A) In an action to recover damages in tort: resulting from personal injury, wrongful death, or damage to property or to recover damages for economic loss or for noneconomic loss such as mental distress, loss of enjoyment, pain, suffering, loss of reputation, or loss of companionship resulting from tortious conduct, if indivisible damages are determined to be proximately caused by more than one defendant, joint and several liability does not apply to any defendant whose conduct is determined to be less than fifty percent of the total fault for the indivisible damages as compared with the total of: (i) the fault of all the defendants; and (ii) the fault (comparative negligence), if any, of plaintiff. A defendant whose conduct is determined to be less than fifty percent of the total fault shall only be liable for that percentage of the indivisible damages determined by the jury or trier of fact.
  (1) The jury trier of fact shall determine the percentage of fault of the claimant plaintiff, of the defendant or defendants, and of any nonparty whose tortious act or omission occurrence was proven to be a proximate cause of the claimant's plaintiff's alleged damages. For purposes of apportioning fault on the verdict form, a "nonparty" means an individual or entity who has previously settled a claim arising out of the same tortious act or occurrence with the plaintiff, or if more than one plaintiff, who has previously settled with any plaintiff in the same civil action. The jury may not be informed of any immunity defense that is available to the nonparty. In assessing percentage of fault, the jury or the court shall consider the fault of all persons or entities whose alleged act or omission was a proximate cause of the alleged damage, regardless of whether the person or entity was or could have been named as a party. The percentage of fault of the parties to the action may total less than one hundred percent if the jury finds that fault contributing to the claimant's loss has also come from a nonparty or nonparties.
  (2) If the percentage of fault of the claimant is greater than fifty percent of the total fault involved in the act or omission that caused the claimant's damage, then the jury shall return a verdict for the defendant and no further jury deliberation is required. A settling party shall be placed on the verdict form is there is any evidence sufficient to survive a South Carolina Rules of Civil Procedure Rule 50 Directed Verdict Motion that the settling party was proximate cause, in whole or in part, of the plaintiff's damages.
  (3) If the percentage of fault of the plaintiff is greater than fifty percent of the total fault involved in the tortious act or omission that caused the plaintiff's damages. Then the trier of fact shall return a verdict for the defendant and no further deliberation is required.
  (3)(4) If the plaintiff's percentage of fault of the claimant is not greater than fifty percent of the total fault involved in the tortious act or omission that caused the claimant's damage plaintiff's damages, then the jurytrier of fact shall determine the total amount of damages that the claimant plaintiff would be entitled to recover if comparative fault were disregarded.
  (4)(5) Upon the completion of subitem (3)(4), the court shall enter judgment for the claimantplaintiff against each defendant in an amount equal to the total amount of damages awarded in subitem (3)(4) multiplied by the percentage of fault assigned to each respective defendant in subitem (1).
  (5) The court may determine that two or more persons are to be treated as a single party. Such treatment must be used where two or more persons acted in concert or where, by reason of agency, employment, or other legal relationship, a party is vicariously responsible for another party.

Amend the bill further, SECTION 1.A., by striking Section 15-38-15(B) and inserting:

 (C) (B) Within one hundred eighty days of commencement of an action, or by leave of court for good cause shown, a defendant may move to add to the verdict form any person or entity, not otherwise excluded by subsection (C), who may be, or may have been, liable to the plaintiff if the defendant has a reasonable basis to believe that the person's or entity's act or omission was a proximate cause of the plaintiff's alleged damages, which must be set forth in its motion. If the defendant will assert the person or entity committed an act of professional negligence, the provisions of Section 15-36-100 apply, and the affidavit required pursuant to Section 15-36-100(B) must be filed with the motion.
  (1) Any party may make any motion at the appropriate time, including, but not limited to, a motion pursuant to Rules 12, 50, and 56 of the South Carolina Rules of Civil Procedure to dismiss or otherwise remove the added person or entity from the verdict form. The court shall apply the same standard to the dismissal or removal of an added person or entity, as it would to any party.
  (2) In order for the trier of fact to allocate any or all fault to an added person or entity, the defendant bears the burden of proof that the added person's or entity's conduct was a proximate cause of the plaintiff's damages unless the plaintiff's pleading is amended to assert a direct claim against the added person or entity pursuant to subitem (3).
  (3) The plaintiff may, within sixty days of the court granting a motion pursuant to this section, amend the plaintiff's pleading to assert any claim against the added person or entity arising out of the occurrence that is the subject matter of the pending litigation. This provision applies notwithstanding any statute of limitations as long as the plaintiff would have satisfied the applicable statute of limitations against the added person or entity if the plaintiff had named the added person or entity as a defendant when the suit was commenced.
   (a) A person or entity added as a party pursuant to this subitem shall be identified as a defendant in the caption of the action.
   (b) An amended pleading pursuant to this provision must comply with Rule 4 of the South Carolina Rules of Civil Procedure and be served on the added party within sixty days of filing the amended pleading.
   (c) A party added pursuant to this provision has the same rights to defend or plead as a defendant under the South Carolina Rules of Civil Procedure.
 (C) The following are excluded from being added to the verdict form pursuant to subsection (B):
  (1) a person or entity not subject to civil liability or payment of damages in a civil action due to worker's compensation statutes or U.S. Bankruptcy Code;
  (2) a person or entity where the plaintiff's damages arise in whole or in part from assault, battery, sexual assault, sexual abuse, sexual misconduct, financial fraud, or theft;
  (3) a person whose fault is imputed to the defendant or whose fault is based upon the fault of the nonparty for which a defendant is vicariously liable;
  (4) a person involved in a case where the causes of action involve strict liability;
 (D) A defendant shall not be entitled to a setoff for monies paid by a nonparty added to the verdict form pursuant to subsection (A) or a person or entity added to the verdict form pursuant to subsection (B). A defendant can elect the setoff from the added nonparty or added person or entity in lieu of placing that nonparty, person, or entity on the verdict form.
 (E) Nothing in this section shall be construed as eliminating the empty chair defense, which is the defendant's right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages or may be liable for any or all of the damages alleged by the plaintiff.
The jury, or the court if there is no jury, shall:
  (1) specify the amount of damages;
  (2) determine the percentage of fault, if any, of plaintiff and the amount of recoverable damages under applicable rules concerning "comparative negligence"; and
  (3) upon a motion by at least one defendant, where there is a verdict under items (1) and (2) above for damages against two or more defendants for the same indivisible injury, death, or damage to property, specify in a separate verdict under the procedures described at subitem (b) below the percentage of liability that proximately caused the indivisible injury, death, damage to property, or economic loss from tortious conduct, as determined by item (1) above, that is attributable to each defendant whose actions are a proximate cause of the indivisible injury, death, or damage to property. In determining the percentage attributable to each defendant, any fault of the plaintiff, as determined by item (2) above, will be included so that the total of the percentages of fault attributed to the plaintiff and to the defendants must be one hundred percent. In calculating the percentage of fault attributable to each defendant, inclusion of any percentage of fault of the plaintiff (as determined in item (2) above) shall not reduce the amount of plaintiff's recoverable damages (as determined under item (2) above).
   (a) For this purpose, the court may determine that two or more persons are to be treated as a single party. Such treatment must be used where two or more defendants acted in concert or where, by reason of agency, employment, or other legal relationship, a defendant is vicariously responsible for the conduct of another defendant.
   (b) After the initial verdict awarding damages is entered and before the special verdict on percentages of liability is rendered, the parties shall be allowed oral argument, with the length of such argument subject to the discretion of the trial judge, on the determination of the percentage attributable to each defendant. However, no additional evidence shall be allowed.
 (D) A defendant shall retain the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party.
 (E) Notwithstanding the application of this section, setoff from any settlement received from any potential tortfeasor prior to the verdict shall be applied in proportion to each defendant's percentage of liability as determined pursuant to subsection (C).
 (F) This section does not apply to a defendant whose conduct is determined to be wilful, wanton, reckless, grossly negligent, or intentional or conduct involving the use, sale, or possession of alcohol or the illegal or illicit use, sale, or possession of drugs.

Amend the bill further, by striking SECTIONS 1.B, 1.C, and 1.D and inserting:

SECTION X. Section 15-38-20 of the S.C. Code is amended to read:

 Section 15-38-20. (A) Except as otherwise provided in this chapter, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
 (B) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.
 (C) There is no right of contribution in favor of any tortfeasor who has intentionally caused or contributed to the injury or wrongful death.
 (D) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable.
 (E) A liability insurer, who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer, is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.
 (F) This chapter does not impair any right of indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.
 (G) This chapter does not apply to breaches of trust or of other fiduciary obligation.
 (H) The provisions in this section apply only to causes of action where the nonparty tortfeasor was not added to the verdict form pursuant to Section 15-38-15(A)(1) or (C).

SECTION X. Section 15-38-30 of the S.C. Code is amended to read:

 Section 15-38-30. In determining the pro rata shares of tortfeasors in the entire liability (1) their relative degrees of fault shall not be considered; (2) if equity requires, the collective liability of some as a group shall constitute a single share; and (3) principles of equity applicable to contribution generally shall apply. This section applies only to causes of action where the nonparty tortfeasor was not added to the verdict form pursuant to Section 15-38-15(A)(1) or (C).

SECTION X. Section 15-38-40 of the S.C. Code is amended to read:

 Section 15-38-40. (A) Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.
 (B) Where a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion upon notice to all parties to the action. Provided, however, contribution may not be enforced in the action until the issue of liability and resulting damages against the defendant or defendants named in the action is determined. Once the issue of liability has been resolved, subject to Section 15-38-20(B), a defendant has the right to seek contribution against any judgment defendant and other persons who were not made parties to the action.
 (C) If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review.
 (D) If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either (1) discharged by payment the common liability within the statute of limitations period applicable to claimant's right of action against him and has commenced his action for contribution within one year after payment, or (2) agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution.
 (E) The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.
 (F) The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.
 (G) The provisions in this section apply only to causes of action where the nonparty tortfeasor was not added to the verdict form pursuant to Section 15-38-15(A)(1) or (C).

Renumber sections to conform.

Amend title to conform.