Senator Johnson proposes the following amendment (SJ-244.MB0022S):
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) using the following criteria:
(a) each defendant is severally liable for the total amount of the plaintiff's noneconomic damages, as defined in Section 15-32-210, and any punitive or exemplary damages; and
(b) if the percentage of fault of any one defendant is greater than fifty percent of the total fault involved in the act or omission that cause the plaintiff's damages, then the defendant is jointly and severally liable to the total amount of plaintiff's economic damages.
(6) If the percentage of fault of any defendant that is charged under Section 56-5-2930, 56-5-2933; 56-5-2945 is greater than fifty percent of the total fault in the tortious act or omission that caused the plaintiff's damages, then the total amount of damages for which the licensee is liable shall not be more than fifty percent of the plaintiff's total damages. Licensee shall have the same meaning as in Section 15-3-710(A)(2).
(7) For purposes of this section, the terms economic damages and noneconomic damages have the same meaning as defined in Section 15-32-210.
(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) The jury, or the court if there is no jury, shall 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.
Amend the bill further, SECTION 1.A., Section 15-38-15, by adding a subsection to read:
(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; or
(5) causes of action involving PFAS or asbestos.
(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.
(F) This section does not apply:
(1) to an action commenced by the State, a State agency, a municipality, a county, a local government, a regional public authority, a special purpose district, a public utility, or any other governmental entity or political subdivision, including, but not limited to, claims seeking recovery of public funds, remediation costs, or other damages arising from acts or omissions of third parties that result in harm to public health, safety, infrastructure, or the environment;
(2) to a defendant whose conduct is determined to be intentional, including an act or omission that is intentional; or
(3) where two or more defendants or nonparties knowingly pursue a common plan or design to commit a tortious act, or actively take part in it. This subitem does not apply to any cause of action arising out Section 15-3-710.
(G) The provisions of this section do not apply to causes of action involving PFAS or asbestos commenced prior to the effective date of this Act. In such cases, liability shall be determined in accordance with other applicable statutory law and common law governing such torts.
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).
Amend the bill further, SECTION 2.A., by striking Section 15-3-710 and inserting:
(J) If an attorney initiates or maintains a civil action against a licensee under this section when a reasonable attorney in the same circumstances would not conclude that under the facts, the civil action against the licensee was justifiably initiated or maintained under this section, then the court shall award that licensee reasonable attorney's fees of not less than five thousand dollars and costs to be paid by that person to that licensee upon a motion made within ten days following the conclusion of a trial and after a verdict has been rendered, or a case has been dismissed by summary judgment, direct verdict, or judgment notwithstanding the verdict.(K) The provisions of this section are the exclusive manner for bringing a dram shop cause of action.
Amend the bill further, SECTION 5.A., by striking Section 61-2-145(A) and inserting:
(A) In addition to all other requirements, a person licensed or permitted to sell alcoholic beverages for on-premises consumption, which remains open after five o'clock p.m. to sell alcoholic beverages for on-premises consumption, except for a 501(c)(3) nonprofit corporation is required to maintain a liquor liability insurance policy or a general liability insurance policy with a liquor liability endorsement for a total coverage of at least one millionfive hundred thousand dollars during the period of the biennial permit or license. A 501(c)(3) nonprofit corporation licensed or permitted to sell alcoholic beverages for on-premises consumption, which remains open after five o'clock p.m. to sell alcoholic beverages for on-premises consumption, is required to maintain a liquor liability insurance policy or a general liability insurance policy with a liquor liability endorsement for a total coverage of at least three hundred thousand dollars during the period of the biennial permit or license. Failure to maintain this coverage constitutes grounds for suspension or revocation of the permit or license.Amend the bill further, SECTION 11, by striking Section 15-78-120(a), (b), (c), and (d) and inserting:
(a)(A) For any action or claim for damages brought under the provisions of this chapter, the liability shall not exceed the following limits:(1) Except as provided in Section 15-78-120(a)(3), no person shall recover in any action or claim brought hereunder a sum exceeding threefive hundred thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.
(2) Except as provided in Section 15-78-120(a)(4), the total sum recovered hereunder arising out of a single occurrence shall not exceed six hundred thousandone million dollars regardless of the number of agencies or political subdivisions or claims or actions involved.
(3) No person may recover in any action or claim brought hereunder against any governmental entity and caused by the tort of any licensed physician or dentist, employed by a governmental entity and acting within the scope of his profession, a sum exceeding one million two hundred thousandtwo million dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.
(4) The total sum recovered hereunder arising out of a single occurrence of liability of any governmental entity for any tort caused by any licensed physician or dentist, employed by a governmental entity and acting within the scope of his profession, may not exceed one million two hundred thousandtwo million dollars regardless of the number of agencies or political subdivisions or claims or actions involved.
(5) The provisions of Section 15-78-120(a)(3) and (a)(4) shall in no way limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than the salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer whether or not the practice plan is incorporated and registered with the Secretary of State.
(b)(B) No award for damages under this chapter shall include punitive or exemplary damages or interest prior to judgment.
(c)(C) In any claim, action, or proceeding to enforce a provision of this chapter, the signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
(d) At the end of each calendar year, the Revenue and Fiscal Affairs Office, Board of Economic Advisors must determine the increase or decrease in the ratio of the Consumer Price Index to the index as of December 31 of the previous year, and the limitation on compensation for all claims pursuant to items (1), (2), (3), or (4) in subsection (a) must be increased or decreased accordingly. As soon as practicable after this adjustment is calculated, the Director of the Revenue and Fiscal Affairs Office shall submit the revised limitation on compensation to the State Register for publication pursuant to Section 1-23-40(2) and the revised limitation becomes effective upon publication in the State Register. For purposes of this subsection "Consumer Price Index" means the Consumer Price Index for All Urban Consumers as published by the United States Department of Labor, Bureau of Labor Statistics.
Amend the bill further, by adding appropriately numbered SECTIONS to read:
SECTION X.A. Section 38-77-140 of the S.C. Code is amended to read:Section 38-77-140. (A) An automobile insurance policy may not be issued or delivered in this State to the owner of a motor vehicle or may not be issued or delivered by an insurer licensed in this State upon a motor vehicle then principally garaged or principally used in this State, unless it contains a provision insuring the persons defined as insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of these motor vehicles within the United States or Canada, subject to limits exclusive of interest and costs, with respect to each motor vehicle, as follows:
(1) twenty-fivefifty thousand dollars because of bodily injury to one person in any one accident and, subject to the limit for one person;
(2) fifty one hundred thousand dollars because of bodily injury to two or more persons in any one accident; and
(3) twenty-fivefifty thousand dollars because of injury to or destruction of property of others in any one accident.
(B) Nothing in this article prevents an insurer from issuing, selling, or delivering a policy providing liability coverage in excess of these requirements.
B. This SECTION takes effect two years after the effective date of this act.
Amend the bill further, by striking SECTION 18 and inserting:
SECTION 18. Except as otherwise provided in this act, Tthis act takes effect upon approval by the Governor .Renumber sections to conform.
Amend title to conform.