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Indicates Matter Stricken
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Indicates Matter Stricken
Indicates New Matter
AMENDED
January 21, 2004
H. 3744
Introduced by Reps. Sandifer, Kirsh, Richardson, Cato, Young, Battle, E.H. Pitts, Barfield, Ceips, Chellis, Clark, Cooper, Davenport, Duncan, Edge, Gilham, Herbkersman, Huggins, Keegan, Bingham, Leach, Littlejohn, Townsend, Kennedy, Loftis, Dantzler, Mahaffey, Bailey, Koon, McCraw, Frye, Owens, Perry, Umphlett, Phillips, Pinson, Rice, Scarborough, Simrill, D.C. Smith, J.R. Smith, Snow, Stille, Taylor, Toole, Tripp, Trotter, Vaughn, Viers, Walker, White, Whitmire and Witherspoon
S. Printed 1/21/04--H.
Read the first time March 6, 2003.
EXPLANATION OF IMPACT:
Judicial Department
The department indicates there will be minimal fiscal impact on the General Fund of the State, which can be absorbed by the agency at the current level of funding.
Department of Health & Human Services (DHHS)
The following impact for this agency is based on the original version of the bill. The impact based on the amended version will be forwarded upon receipt and review.
Through the Third Party Liability (TPL) program, DHHS actively pursues assignment of its share of tort claims against third parties who have injured Medicaid recipients, in order to recover all or a portion of the Medicaid payments for medical care of the injured recipient. These recoveries help to reduce expenditures for Medicaid services. Additionally, Proviso 8.5 of the Appropriations Act authorizes DHHS to fund the net costs of its collection efforts from the recoveries. Generally, the recipients in these cases are represented by private counsel on a contingency basis.
In the opinion of DHHS legal counsel and TPL staff, the limitations on recoveries and the repeal of the Collateral Source Rule contained in this Bill could have the effect of reducing DHHS TPL recoveries because of smaller awards to injured recipients. It may increase the cost to DHHS of pursuing recoveries in that potentially smaller awards might make representing recipients in these cases less attractive to private counsel, thus making it necessary for DHHS attorneys to pursue cases on behalf of the agency. The fiscal impact is estimated based on the potential reduction of $500,000 TPL recoveries, the 30% state share of which would be approximately $150,000.
Department of Mental Health and Department of Disabilities and Special Needs
The following impact for this agency is based on the original version of the bill. The impact based on the amended version will be forwarded upon receipt and review.
The departments indicate that there will be no fiscal impact on the agencies.
Workers' Compensation Commission
The commission indicates there will be no fiscal impact on the General Fund of the State or on federal and/or other funds.
Patients Compensation Fund (PCF)
The PCF covers medical malpractice claims but has not made an official comment on the issue of this bill.
Department of Insurance
The department states that this bill would have no impact on the General Fund of the State or on federal and/or other funds.
State Budget and Control Board
A review of this bill by the Office of General Counsel has identified Section 12 Article 3 in the amendment as an area of concern, depending upon its interpretation this section could have a significant adverse fiscal impact on state and local governments including school districts.
If Section 12, Article 3 is to be interpreted as authorizing recovery of punitive damages against the government in all claims except those cognizable only pursuant to the Tort Claims Act, then state and local governments, special purpose and school districts could incur an unlimited liability that is unfunded and uninsurable.
Approved By:
Don Addy
Office of State Budget
TO AMEND SECTION 15-7-30, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ACTIONS THAT MUST BE TRIED IN THE COUNTY WHERE THE DEFENDANT RESIDES, SO AS TO DEFINE KEY TERMS AND TO PROVIDE FACTORS FOR THE COURT TO CONSIDER WHEN DETERMINING A CORPORATION'S PRINCIPAL PLACE OF BUSINESS; TO AMEND SECTION 15-7-100, RELATING TO CHANGING THE PLACE OF TRIAL, SO AS TO PROVIDE FACTORS FOR THE COURT TO CONSIDER WHEN DETERMINING WHETHER TO CHANGE THE PLACE OF TRIAL; TO AMEND SECTION 36-2-803, RELATING TO PERSONAL JURISDICTION BASED UPON CONDUCT, SO AS TO DELETE THE PROVISION THAT PROHIBITED CHANGE OF VENUE IN AN ACTION WHEN JURISDICTION IS BASED SOLELY ON THIS SECTION; TO AMEND SECTION 15-36-10, AS AMENDED, RELATING TO LIABILITY FOR ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS, SO AS TO REPLACE THE EXISTING PROVISIONS OF THE CHAPTER WITH PROVISIONS REQUIRING THE SIGNATURE OF AN ATTORNEY OR PRO SE LITIGANT ON ALL PLEADINGS AND OTHER DOCUMENTS FILED IN A CIVIL OR ADMINISTRATIVE ACTION, TO PROVIDE THAT THE SIGNATURE CONSTITUTES CERTIFICATION THAT THE ACTION IS NOT FRIVOLOUS OR INTERPOSED FOR DELAY, AND TO PROVIDE SANCTIONS; BY ADDING SECTION 15-36-100 SO AS TO ESTABLISH THE REQUIREMENT FOR AN AFFIDAVIT OF AN EXPERT WITNESS IN A PROFESSIONAL MALPRACTICE ACTION; TO AMEND SECTION 15-3-640, RELATING TO THE STATUTE OF LIMITATIONS FOR FILING AN ACTION FOR A CONSTRUCTION DEFECT, SO AS TO DECREASE THE STATUTE OF REPOSE FROM THIRTEEN TO EIGHT YEARS; TO AMEND SECTIONS 40-59-840 AND 40-59-850, BOTH RELATING TO NOTICE AND OPPORTUNITY TO CURE CONSTRUCTION DWELLING DEFECTS, SO AS TO PROVIDE THAT THE STATUTE OF LIMITATIONS IS TOLLED UNTIL A CLAIM IS DENIED OR REPAIRS ARE COMPLETED AND TO PROVIDE THAT THE CLAIMANT MAY PROCEED WITH A CIVIL ACTION IF THE PARTIES CANNOT AGREE TO SETTLE THE DISPUTE WITHIN NINETY DAYS OF THE INITIAL NOTICE OF CLAIM; TO AMEND CHAPTER 11, TITLE 40, RELATING TO CONTRACTORS, SO AS TO DESIGNATE THE EXISTING SECTIONS AS ARTICLE 1; BY ADDING ARTICLE 3, CHAPTER 11, TITLE 40 SO AS TO ENACT THE "SOUTH CAROLINA NOTICE AND OPPORTUNITY TO CURE NON-RESIDENTIAL CONSTRUCTION DEFECTS ACT", TO PROVIDE A DEFINITION FOR "NON-RESIDENTIAL PROPERTY" AND OTHER KEY TERMS, TO PROVIDE THAT THE STATUTE OF LIMITATIONS IS TOLLED UNTIL A CLAIM IS DENIED OR REPAIRS ARE COMPLETED, AND TO PROVIDE THAT THE CLAIMANT MAY PROCEED WITH A CIVIL ACTION IF THE PARTIES CANNOT AGREE TO SETTLE THE DISPUTE; TO AMEND SECTION 34-31-20, AS AMENDED, RELATING TO THE POST JUDGMENT LEGAL RATE OF INTEREST, SO AS TO PROVIDE THE RATE OF INTEREST IS EQUAL TO THE PRIME RATE AS LISTED IN THE WALL STREET JOURNAL PLUS FOUR PERCENT; BY ADDING ARTICLE 1, CHAPTER 32, TITLE 15 SO AS TO ENACT THE SOUTH CAROLINA NONECONOMIC DAMAGE AWARDS ACT, TO PROVIDE A DEFINITION FOR "NONECONOMIC DAMAGES" AND OTHER KEY TERMS, AND TO PROVIDE THAT A PLAINTIFF MAY BE AWARDED COMPENSATION FOR ACTUAL ECONOMIC DAMAGES AND NONECONOMIC DAMAGES NOT TO EXCEED TWO MILLION DOLLARS; BY ADDING ARTICLE 3, CHAPTER 32, TITLE 15 SO AS TO ESTABLISH A PROCEDURE FOR THE AWARD OF PUNITIVE DAMAGES, TO PROVIDE A DEFINITION FOR "PUNITIVE DAMAGES" AND OTHER KEY TERMS, TO PROVIDE PUNITIVE DAMAGES MUST BE PROVEN BY CLEAR AND CONVINCING EVIDENCE, TO PROVIDE THE JURY MUST DETERMINE AND STATE THE AMOUNT OF PUNITIVE DAMAGES SEPARATELY FROM THE AMOUNT OF COMPENSATORY DAMAGES, TO PROHIBIT PUNITIVE DAMAGES FROM EXCEEDING NINE TIMES THE AMOUNT OF COMPENSATORY DAMAGES, AND TO PROVIDE FOR A BIFURCATED TRIAL IN CIVIL ACTIONS TRIED BEFORE A JURY WHEN PUNITIVE DAMAGES ARE SOUGHT; TO AMEND CHAPTER 38, TITLE 15, RELATING TO THE SOUTH CAROLINA CONTRIBUTION AMONG TORTFEASORS ACT, SO AS TO INCREASE THE TIME IN WHICH A CLAIMANT MAY OPEN A JUDGMENT TO TWO YEARS, TO ABOLISH JOINT AND SEVERAL LIABILITY, AND TO PROVIDE FOR CONTRIBUTORY LIABILITY AMONG TORTFEASORS; TO AMEND SECTION 29-7-20, AS AMENDED, RELATING TO PENALTIES FOR FAILURE TO PAY LABORERS, SO AS TO DELETE THE PROVISION THAT PROVIDES THAT A VIOLATION OF THE SECTION IS A MISDEMEANOR, TO DELETE THE PROVISION THAT PROVIDES FOR A FINE OR IMPRISONMENT, AND TO PROVIDE THAT A PERSON WHO VIOLATES THE PROVISIONS OF THIS SECTION IS SUBJECT TO AN ACTION FOR DAMAGES; TO REPEAL SECTION 58-23-90 OF THE 1976 CODE RELATING TO THE PROPER VENUE TO BRING AN ACTION AGAINST A LICENSED MOTOR CARRIER, AND TO REPEAL SECTIONS 15-36-20, 15-36-30, 15-36-40, 15-36-50 OF THE 1976 CODE, ALL RELATING TO FRIVOLOUS CIVIL PROCEEDINGS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 15-7-30 of the 1976 Code is amended to read:
"Section 15-7-30. (A) As used in this section:
(1) 'Domestic corporation' means a 'domestic corporation' as defined in Section 33-1-400.
(2) 'Domestic limited partnership' means a 'domestic limited partnership' as defined in Section 33-42-20.
(3) 'Domestic limited liability company' means a 'domestic limited liability partnership' as defined in Section 33-41-1110 with its principal place of business within this State.
(4) 'Domestic limited liability partnership' means a 'domestic limited liability partnership' as defined in Section 33-41-1110 with its principal place of business within this State.
(5) 'Foreign corporation' means a 'foreign corporation' as defined in Section 33-1-400.
(6) 'Foreign limited partnership' means a 'foreign limited partnership' as defined in Section 33-42-20.
(7) 'Foreign limited liability company' means a 'foreign limited liability partnership' as defined in Section 33-41-1150 with its principal place of business outside of the State.
(8) 'Foreign limited liability partnership' means a 'foreign limited liability partnership' as defined in Section 33-41-1150 with its principal place of business outside of the State.
(9) 'Nonresident individual' means a person who is not domiciled in this State.
(10) 'Principal place of business' means:
(a) the corporation's home office location from which the corporation's officers direct, control, or coordinate its activities within the State;
(b) the location of the corporation's manufacturing, sales, or purchasing facility within the State if the corporation does not have a home office within the State; or
(c) the location at which the majority of corporate activity takes place if the corporation has multiple centers of manufacturing, sales, or purchasing located within the State. The following factors may be considered when determining the location at which the majority of corporate activity takes place:
(i) the number of employees located in any one county;
(ii) the authority of the employees located in any one county;
(iii) the tangible corporate assets that exist in any one county.
(11) 'Resident individual' means a person who is domiciled in this State.
(B) In all other cases not provided for in Sections 15-7-10, 15-7-20, or 15-78-100, and except as provided in Section 15-7-100(D), the action shall must be tried in the county in which the defendant resides at the time of the commencement of the action it properly may be brought and tried against the defendant according to the provisions of this section. If there be is more than one defendant, then the action may be tried in any county in which one or more of the defendants to such action resides at the time of the commencement of an the action properly may be maintained against one of the defendants pursuant to this section. If none of the parties shall reside in the State the action may be tried in any county which the plaintiff shall designate in his complaint. This section is subject however to the power of the court to change the place of trial in certain cases as provided by law.
(C) A civil action tried pursuant to this section against a resident individual defendant must be brought and tried in the county in which the:
(1) defendant resides at the time the cause of action arose; or
(2) cause of action arose.
(D) A civil action tried pursuant to this section against a nonresident individual defendant must be brought and tried in the county in which the cause of action arose.
(E) A civil action tried pursuant to this section against a domestic corporation, domestic limited partnership, domestic limited liability company, or domestic limited liability partnership must be brought and tried in the county in which the:
(1) corporation's principal place of business at the time the cause of action arose; or
(2) cause of action arose.
(F) A civil action tried pursuant to this section against a foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership must be brought and tried in the county in which the:
(1) foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership has its principal place of business in this State at the time the cause of action arose; or
(2) cause of action arose."
SECTION 2. Section 15-7-100 of the 1976 Code is amended to read:
"Section 15-7-100. (A) The court may shall change the place of trial in the following cases if:
(1) When the county designated for that purpose in the complaint is not the proper county;
(2) When there is reason to believe that a fair and impartial trial cannot be had therein there; and or
(3) When the convenience of witnesses and the ends of justice would be promoted by the change.
(B) In determining if the place of trial should be changed pursuant to subsection (A)(3), the court shall consider:
(1) the relative ease of access to the sources of proof;
(2) witness availability and costs of obtaining attendance of a witness;
(3) the possibility of viewing premises, if applicable to the action;
(4) ease, time, efficiency, and expense incurred trying the case;
(5) enforceability of a judgment if one is obtained;
(6) administrative difficulties for South Carolina courts;
(7) local interests in the trial; and
(8) difficulties for South Carolina courts arising from conflict of laws and interpretation of foreign laws.
(C) When the place of trial is changed all other proceedings shall must be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties in writing duly filed or by order of the court. And The papers shall must be filed or transferred accordingly."
(D) If the court changes the place of trial pursuant to the provisions of subsection (A)(3), the action is not subject to the provisions of Section 15-7-30."
SECTION 3. Section 36-2-803 of the 1976 Code is amended to read:
"Section 36-2-803. (1) A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's:
(a) transacting any business in this State;
(b) contracting to supply services or things in the State;
(c) commission of a tortious act in whole or in part in this State;
(d) causing tortious injury or death in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this State; or
(e) having an interest in, using, or possessing real property in this State; or
(f) contracting to insure any person, property or risk located within this State at the time of contracting; or
(g) entry into a contract to be performed in whole or in part by either party in this State; or
(h) production, manufacture, or distribution of goods with the reasonable expectation that those goods are to be used or consumed in this State and are so used or consumed.
(2) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him, and such action, if brought in this State, shall not be subject to the provisions of Section 15-7-100 (3). Reserved."
SECTION 4. Section 15-36-10 of the 1976 Code, as last amended by Act 432 of 1988, is further amended to read:
"Section 15-36-10. (A)(1) Any person who takes part in the procurement, initiation, continuation, or defense of any civil proceeding is subject to being assessed for payment of all or a portion of the attorney's fees and court costs of the other party if:
(1) he does so primarily for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claim upon which the proceedings are based; and
(2) the proceedings have terminated in favor of the person seeking an assessment of the fees and costs.
As used in this chapter, "person" is defined to mean any individual, corporation, company, association, firm, partnership, society, joint stock company, and any other entity, including any governmental entity or unincorporated association of persons. A pleading filed in a civil or administrative action on behalf of a party who is represented by an attorney must be signed by at least one attorney of record who is an active member of the South Carolina Bar and must include the address and telephone number of the attorney signing the document.
(2) A document filed in a civil or administrative action by a party who is not represented by an attorney must be signed by the party and must include the address and telephone number of the party.
(3) The signature of an attorney or a pro se litigant constitutes a certificate to the court that the person:
(a) has read the document;
(b) reasonably believes that under the facts his claim or defense may be warranted under the existing law or, if it is not warranted under the existing law, a good faith argument exists for the extension, modification, or reversal of existing law;
(c) believes in good faith that his procurement, initiation, continuation, or defense of a civil cause is not intended merely to harass or injure the other party; and
(d) believes that it is not frivolous, interposed for delay, or brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based.
(4) An attorney or pro se litigant participating in a civil or administrative action or defense may be sanctioned for filing a frivolous pleading, motion, or document and for making frivolous arguments.
(5) A party may be sanctioned if he fails in good faith to disclose fully facts necessary to put his attorney on notice that the claim or defense he seeks is frivolous.
(B)(1) If a document is not signed or does not comply with this section, it must be stricken unless it is signed promptly or amended to comply with this section after the omission is called to the attention of the attorney or the party.
(2) If a document is signed in violation of this section, a party has violated subsection (A)(5), or an attorney or pro se litigant has violated subsection (A)(4), the court, upon its own motion, or motion of a party, or by petition in collateral proceedings, may impose an appropriate sanction upon the person in violation.
(3) In determining whether sanctions are appropriate or the severity of a sanction, the court may consider previous violations of this section.
(4) Sanctions may include:
(a) an order for the party or pro se litigant to pay the reasonable costs and attorney's fees;
(b) an order for the attorney to pay a reasonable fine to the court; or
(c) a directive of a nonmonetary nature designed to deter a future frivolous action or an action in bad faith.
(5) In determining if an attorney, a party, or a pro se litigant has violated the provisions of this section, the court shall take into account:
(a) the number of parties;
(b) the complexity of the claims and defenses;
(c) the length of time available to the attorney, party, or pro se litigant to investigate and conduct discovery;
(d) information disclosed or undisclosed to the attorney, party, or pro se litigant through discovery and adequate investigation; and
(e) other factors the court considers appropriate.
(C) A person is entitled to notice and an opportunity to respond before the imposition of sanctions pursuant to this section. A court or party proposing a sanction pursuant to this section shall notify the court and all parties of the conduct constituting a violation of this section and explain the basis for the potential sanction imposed. Upon notification the attorney, party, or pro se litigant has thirty days to:
(1) withdraw the document or argument constituting a violation of this section; or
(2) respond to the allegations of the violation of this section; or
(3) mitigate the effects of the violation of this section in a manner the court deems tantamount to withdrawal pursuant to subsection (C)(1); and
(4) provide all parties and the court with:
(a) written notification of withdrawal pursuant to subsection (C)(1); or
(b) a copy of the response indicated in subsection (C)(2); or
(c) an explanation of mitigation pursuant to subsection (C)(3).
(D) This act may not alter the South Carolina Rules of Civil Procedure or the South Carolina Appellate Court Rules.
(E) The provisions of this section apply in addition to all other remedies available at law or in equity.
(F) The amount requested for damages in a pleading may not be considered in a determination of a violation of this section."
SECTION 5. Chapter 36, Title 15 of the 1976 Code is amended by adding:
"Section 15-36-100. (A) As used in this section, 'expert witness' means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who is:
(1) licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and
(2)(a) board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or
(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(i) the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion;
(ii) the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion; or
(iii) any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion.
(B) In an action for damages alleging professional malpractice against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff is required to file with the complaint an affidavit of an expert witness, which must specify at least one negligent act or omission claimed to exist and the factual basis for those claims based on the available evidence at the time of the filing of the affidavit.
(C) The contemporaneous filing requirement of subsection (B) does not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on a claim stated in the complaint within ten days of the date of filing and, because of the time constraints, the plaintiff alleges that an affidavit of an expert could not be prepared. In this case, the plaintiff has forty-five days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause extend the time as it determines justice requires. If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim.
(D) This section does not extend an applicable period of limitation, except that if the affidavit is filed within the period specified in this section, the filing of the affidavit after the expiration of the statute of limitations is considered timely and provides no basis for a statute of limitations defense.
(E) If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed contemporaneously with its initial responsive pleading, that the affidavit is defective, the plaintiff's complaint is subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment within thirty days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing an amendment or response to the motion, or both, as it determines justice requires.
(F) If a plaintiff fails to file an affidavit as required by this section and the defendant raises the failure to file an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, the complaint is not subject to renewal after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required pursuant to this section and the failure to, file the affidavit is the result of a mistake.
(G) This section applies to the following professions:
(1) architects;
(2) attorneys at law;
(3) certified public accountants;
(4) chiropractors;
(5) dentists;
(6) land surveyors;
(7) medical doctors;
(8) marriage and family therapists;
(9) nurses;
(10) occupational therapists;
(11) optometrists;
(12) osteopathic physicians;
(13) pharmacists;
(14) physical therapists;
(15) physicians' assistants;
(16) professional counselors;
(17) professional engineers;
(18) podiatrists;
(19) psychologists;
(20) radiological technicians;
(21) respiratory therapists; and
(22) veterinarians."
SECTION 6. Section 15-3-640 of the 1976 Code is amended to read:
"Section 15-3-640. (A) No An actions action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may not be brought more than thirteen eight years after substantial completion of such an the improvement. For purposes of this section, an action based upon or arising out of the defective or unsafe condition of an improvement to real property includes is an action:
(1) an action to recover damages for breach of a contract to construct or repair an improvement to real property;
(2) an action to recover damages for the negligent construction or repair of an improvement to real property;
(3) an action to recover damages for personal injury, death, or damage to property;
(4) an action to recover damages for economic or monetary loss;
(5) an action in contract or in tort or otherwise;
(6) an action for contribution or indemnification for damages sustained on account of an action described in this subdivision;
(7) an action against a surety or guarantor of a defendant described in this section;
(8) an action brought against any a current or prior owner of the real property or improvement, or against any other another person having a current or prior interest in the real property or improvement;
(9) an action against an owners owner or manufacturers manufacturer of components, or against any a person furnishing materials, or against any a person who develops real property, or who performs or furnishes the design, plans, specifications, surveying, planning, supervision, testing, or observation of construction, or construction of an improvement to real property, or a repair to an improvement to real property.
(B) This section describes an outside limitation of thirteen eight years after the substantial completion of the improvement, within which normal statutes of limitations continue to run.
(C) Any A building permit for the construction of an improvement to real property shall must contain in bold type notice to the owner or possessor of the property of his rights under this section to contract for a guarantee of the structure being free from defective or unsafe conditions beyond thirteen eight years after substantial completion of the improvement. The Department of Consumer Affairs shall publish in conspicuous places the right of any an owner or possessor to contract for such extended liability under this section. Nothing in this section shall prohibit any prohibits a person from entering into any contractual agreement prior to the substantial completion of the improvement which extends any guarantee of a structure or component being free from defective or unsafe conditions beyond thirteen eight years after substantial completion of the improvement or component."
SECTION 7. A. Section 40-59-840 of the 1976 Code, as added by Act 82 of 2003, is amended to read:
"Section 40-59-840. (A) In an action brought against a contractor or subcontractor arising out of the construction of a dwelling, the claimant must, no later than ninety days before filing the action, serve a written notice of claim on the contractor. Upon service of the notice, the statute of limitations is tolled until the claim is denied or upon completion of repairs by the contractor or his agent. The notice of claim must contain the following:
(1) a statement that the claimant asserts a construction defect;
(2) a description of the claim or claims in reasonable detail sufficient to determine the general nature of the construction defect; and
(3) a description of any the results of the defect, if known.
The contractor or subcontractor shall advise the claimant, within fifteen days of receipt of the claim, if the construction defect is not sufficiently stated and shall request clarification."
B. Section 40-59-850 of the 1976 Code, as added by Act 82 of 2003, is amended to read:
"Section 40-59-850. (A) The contractor or subcontractor has thirty days from service of the initial notice of claim to inspect, offer to remedy, offer to settle with the claimant, or deny the claim regarding the defects. The claimant shall receive written notice of the contractor's or subcontractor's, as applicable, election under this section Within thirty days from the service of the initial notice of claim, the contractor or subcontractor shall serve written notice on the claimant of the contractor's or subcontractor's election pursuant to this section. The claimant shall allow inspection of the construction defect at an agreeable time to both parties, if requested under this section. The claimant shall give the contractor and any subcontractors reasonable access to the dwelling for inspection and if repairs have been agreed to by the parties, reasonable access to affect repairs. Failure to respond within thirty days is deemed a denial of the claim.
(B) The claimant shall serve a response to the contractor's offer, if any, within ten days of receipt of the offer.
(C) If the parties cannot agree to settle the dispute pursuant to this article, within ninety days after service of the initial notice of claim on the contractor, the claim is considered denied and the claimant may proceed with a civil action or other remedy provided by contract or by law.
(D) Any offers of settlement, repair, or remedy pursuant to this section, are not admissible in an action."
SECTION 8. Sections 40-11-5 through 40-11-430 of the 1976 Code are designated as Article 1, Contractors Generally.
SECTION 9. Chapter 11, Title 40 of the 1976 Code is amended by adding:
Section 40-11-500. This article may be cited as the 'South Carolina Notice and Opportunity to Cure Non-Residential Construction Defects Act'.
Section 40-11-510. As used in this article:
(1) 'Action' means a civil lawsuit or action or arbitration proceeding for damages or indemnity asserting a claim for injury or loss to non-residential property caused by an alleged defect arising out of or related to the design, construction, condition, or sale of the non-residential property, or a remodel of a non-residential property.
(2) 'Claimant' means a non-residential property owner, including a subsequent purchaser, who asserts a claim against a contractor, subcontractor, supplier, or design professional concerning a defect in the design, construction, condition, or sale of a non-residential property or in the remodel of a non-residential property.
(3) 'Construction defect' means a deficiency in or a deficiency arising out of the design, specifications, surveying, planning, supervision, or construction of non-residential improvements that results from any of the following:
(a) defective material, products, or components used in the construction of non-residential improvements;
(b) failure to substantially comply with applicable codes in effect at the time of construction of non-residential improvements;
(c) failure of the design of non-residential improvements to meet the applicable professional standards of care and applicable building codes at the time of governmental approval of the design of non-residential improvements; or
(d) failure to construct non-residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction. Substantial compliance with the applicable codes in effect at the time of construction conclusively establishes construction in accordance with accepted trade standards for good and workmanlike construction, with respect to all matters specified in those codes.
(4) 'Contractor' means a person licensed or registered pursuant to the provisions of Chapter 11, Title 40 who is engaged in the business of designing, developing, or the construction of non-residential properties.
(5) 'Design professional' means a person licensed or registered pursuant to the provisions of Title 40 as an architect, landscape architect, engineer, or surveyor;
(6) 'Non-residential Property' means any property, building, structure, or improvement to real property that is not a dwelling as defined in Section 40-59-820.
(7) 'Serve' or 'service' means personal service or delivery by certified mail to the last known address of the addressee.
(8) 'Supplier' means a person who provides materials, equipment, or other supplies for the construction of a non-residential property.
(9) 'Subcontractor' means a contractor who performs work on behalf of another contractor in the construction of a non-residential property who is licensed or registered pursuant to the provisions of Title 40.
Section 40-11-520. If the claimant files an action in court before first complying with the requirements of this article, on motion of a party to the action, the court shall stay the action until the claimant has complied with the requirements of this article.
Section 40-11-530. (A) In an action brought against a contractor, subcontractor, supplier, or design professional arising out of the construction of a non-residential property, the claimant must, no later than ninety days before filing the action, serve a written notice of claim on the contractor, subcontractor, supplier, or design professional. Upon service of the notice, the statute of limitations is tolled until the claim is denied or upon completion of repairs by the contractor, subcontractor, supplier, or design professional. The notice of claim must contain the following:
(1) a statement that the claimant asserts a construction defect;
(2) a description of the claim or claims in reasonable detail sufficient to determine the general nature of the construction defect; and
(3) a description of any results of the defect, if known.
(B) The contractor, subcontractor, supplier, or design professional shall advise the claimant within fifteen days of receipt of the claim if the construction defect is not sufficiently stated and shall request clarification.
Section 40-11-540. (A) The contractor, subcontractor, supplier, or design professional has sixty days from service of the initial notice of claim to inspect, offer to remedy, offer to settle with the claimant, or deny the claim regarding the defects. The claimant shall receive written notice of the contractor's, subcontractor's, supplier's, or design professional's, as applicable, election pursuant to the provisions of this section. The claimant shall allow inspection of the construction defect at an agreeable time, during normal business hours, to all parties, if requested pursuant to this section. The claimant shall give the contractor, subcontractor, supplier, or design professional reasonable access to the property for inspection and if repairs have been agreed to by the parties, reasonable access to affect repairs. Failure of the contractor to respond within sixty days is deemed a denial of the claim.
(B) The claimant shall serve a response to the contractor's, subcontractor's, supplier's, or design professional's offer within ten days of receipt of the offer.
(C) If the parties cannot agree to settle the dispute pursuant to this article within ninety days after service of the initial notice of claim on the contractor, subcontractor, supplier, or design professional, the claim is considered denied and the claimant may proceed with a civil action or other remedy provided by contract or by law.
(D) An offer of settlement, repair, or remedy pursuant to this section, is not admissible in an action.
Section 40-11-550. (A) This article does not apply to actions arising out of claims for personal injury, death, or both.
(B) South Carolina Court Administration is directed to develop a designation on the civil action cover sheet which indicates whether a stay has been granted for a civil action filed pursuant to this article."
SECTION 10. Section 34-31-20 of the 1976 Code, as last amended by Act 344 of 2000, is further amended to read:
"Section 34-31-20. (A) In all cases of accounts stated and in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law, the legal interest shall be at the rate of eight and three-fourths percent per annum.
(B) All A money decrees decree and or judgments judgment of the courts court enrolled or entered shall must draw interest according to law. The legal rate of interest is at the rate of twelve percent a year equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus four percent, compounded annually. The South Carolina Supreme Court shall issue a court order by January 15 of each year confirming the annual prime rate."
SECTION 11. Title 15 of the 1976 Code is amended by adding:
Section 15-32-10. This article may be cited as the 'South Carolina Noneconomic Damage Awards Act of 2004'.
Section 15-32-20. As used in this chapter, unless the context clearly requires otherwise:
(1) 'Actual economic damages' means pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income, 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, and other monetary losses.
(2) 'Claimant' means the person suffering personal injury.
(3) 'Noneconomic damages' means nonpecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.
(4) 'Personal injury' means injuries to the person including, but not limited to, bodily injuries, mental distress or suffering, loss of wages, loss of services, loss of consortium, and other noneconomic damages and actual economic damages.
(5) 'Personal injury action' means an action for personal injury, including a wrongful death action pursuant to Sections 15-51-10 through 15-51-60 and a survival action pursuant to Section 15-5-90.
Section 15-32-30. (A) In a personal injury action, the prevailing plaintiff may be awarded compensation for:
(1) actual economic damages suffered by the claimant; and
(2) noneconomic damages suffered by the claimant not to exceed two million dollars, except as provided in subsection (C).
(B) the provisions of subsection (A)(2) may not be made known to the jury through any means, including voir dire, the introduction of evidence, argument of counsel, or instructions to the jury.
(C) At the end of each calendar year, the State Budget and Control Board, Board of Economic Advisors, shall 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 noneconomic damages pursuant to subsection (A)(2) must be increased or decreased accordingly. As soon as practicable after this adjustment is calculated, the Director of the State Budget and Control Board 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 Wage Earners and Clerical Workers as published by the United States Department of Labor, Bureau of Labor Statistics.
Section 15-32-40. The provisions of this article do not affect any right, privilege, or provision of the South Carolina Tort Claims Act pursuant to Chapter 78, Title 15."
SECTION 12. Chapter 32, Title 15 of the 1976 Code is amended by adding:
Section 15-32-310. As used in this article:
(1) 'Claimant' means a party to a civil action, including a plaintiff, counterclaimant, cross-claimant or third-party plaintiff, seeking the recovery of punitive damages.
(2) 'Compensatory damages' means actual damages, including nominal damages.
(3) 'Defendant' means a party to a civil action, including a counter defendant, cross-defendant or third-party defendant, from whom a claimant seeks recovery of punitive damages.
(4) 'Punitive damages' means extra-compensatory or exemplary damages awarded for the purposes set forth in Section 15-32-320.
Section 15-32-320. Subject to the provisions of this article, punitive damages may be awarded in a civil action to punish a defendant or to deter repetition of similar acts only if the plaintiff proves the damages by clear and convincing evidence.
Section 15-32-330. (A) This article applies to every claim for punitive damages, regardless of whether the claim for relief is based upon a statutory or common law right of action or based in equity. In an action subject to this article, in whole or in part, the provisions of this article prevail over another provision of law to the contrary.
(B) The provisions of this article do not apply to actions brought under the South Carolina Tort Claims Act, pursuant to Chapter 78 of Title 15, for which punitive damages are not recoverable.
Section 15-32-340. (A) In an action seeking an award of punitive damages, the jury must determine and state the amount of punitive damages separately from the amount of compensatory damages.
(B) Punitive damages awarded against a defendant may not exceed nine times the amount of compensatory damages, except in the case of fraud or the infliction of an intentional tort including, but not limited to, false imprisonment, trespass, invasion of privacy, and civil actions arising out of criminal violations. If a jury returns a verdict for punitive damages in excess of the maximum amount specified pursuant to this subsection, the trial court shall reduce the award and enter judgment for punitive damages in the maximum amount.
(C) The provisions of subsection (B) may not be made known to the jury through any means, including voir dire, the introduction of evidence, argument of counsel, or instructions to the jury.
Section 15-32-350. (A) A civil action tried before a jury and seeking punitive damages must be conducted in a bifurcated trial. Each phase of the trial must be conducted before the same jury.
(B) In the first phase of the trial the jury shall:
(1) determine and assign liability among the parties; and
(2) award compensatory damages against the liable parties.
(C) At the conclusion of the first phase of the trial, if the court determines that the conduct of the liable parties was wilful and wanton and compensatory damages are awarded against the liable parties, the jury shall determine if punitive damages are warranted against the liable parties and the amount of punitive damages to be awarded during the second phase of the trial.
(D) In determining the amount of punitive damages, the jury shall consider:
(1) degree of culpability of the liable parties;
(2) duration of the conduct;
(3) awareness or concealment of the conduct by the liable parties;
(4) existence of similar past conduct;
(5) likelihood that an award will deter these or other parties from similar conduct;
(6) whether the award is reasonably related to the harm likely to result from the conduct;
(7) defendant's ability to pay; and
(8) any other factor the court considers necessary for the jury to make an adequate and informed determination.
(E) Upon motion of the liable party, the court shall conduct a post trial review, on the record, to ensure that an award is not grossly disproportionate to the severity of the offense or conduct.
Section 15-32-360. When reviewing the evidence regarding a finding by the jury concerning liability for punitive damages in accordance with this article or regarding the amount of punitive damages awarded, the trial court shall state in a written opinion its reasons for upholding or overturning the finding or award. The trial court shall specifically address the evidence, or lack of evidence, as it relates to liability or the amount of punitive damages pursuant to the requirements of this article.
Section 15-32-370. A demand for punitive damages must be stated specifically, except for the amount, in the complaint and the aggravating factor supporting the award of punitive damages must be averred with particularity. The amount of damages must be pled in accordance with applicable court rules."
SECTION 13. Chapter 38, Title 15 is amended to read:
Section 15-38-10. This chapter may be cited as the Uniform Contribution Among Tortfeasors Act.
Section 15-38-15. (A) In an action to recover damages resulting from personal injury, wrongful death, or damage to property, if the damages are determined to be proximately caused by more than one defendant, each defendant against whom recovery is allowed is liable to the claimant only for the defendant's proportionate share of the recoverable damages except as provided in subsection (D).
(B) The proportionate share of damages for which each defendant is liable is calculated by multiplying the damages by a fraction in which the numerator is the defendant's percentage of liability determined pursuant to subsection (C), and the denominator is the total of the percentages of liability determined pursuant to subsection (C), to be attributable to all defendants whose actions are a proximate cause of the injury, death, or damage to property including settled or released persons pursuant to Section 15-38-50. A percentage of liability attributable to the claimant may not be included in the denominator of the fraction.
(C) The jury or court, if there is no jury, shall specify:
(1) the amount of damages;
(2) findings of fact necessary for the court to specify recoverable damages; and
(3) the percentage of liability that proximately caused the injury, death, or damage to property in relation to one hundred percent, that is attributable to each defendant whose actions are a proximate cause of the injury, death, or damage to property including settled or released persons pursuant to Section 15-38-50.
(D)(1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, at least one year but not more than two years after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant's proportionate share of the recoverable damages is not collectible from that defendant, and shall reallocate that amount among the other defendants in accordance with the provisions of this section.
(2) The court shall order that the portion of the amount not collectible be reallocated among the other defendants. The court shall reallocate to the other defendants an amount equal to the amount not collectible of recoverable damages multiplied by a fraction in which the numerator is the defendant's percentage of liability and the denominator is the total of the percentages of liability of all defendants excluding any defendant whose liability is reallocated.
(3) The defendant whose liability is reallocated remains subject to contribution pursuant to the provisions of this chapter and to any continuing liability to the claimant on the judgment.
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 proportionate share of the common liability as determined by the jury or court at the time of judgment, and his total recovery is limited to the amount paid by him in excess of his pro rata proportionate share as determined by the jury or court at the time of judgment. No tortfeasor is compelled to make contribution beyond his own pro rata proportionate share of the entire liability as determined by the jury or court at the time of judgment.
(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 proportionate share of the common liability as determined by the jury or court at the time of judgment. 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.
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.
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 the resulting damages against the defendant or defendants named in the action, and the proportionate fault of the defendant 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 party seeking contribution has made the final payment in excess of that party's share of the judgment 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.
Section 15-38-50. When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(1) it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(2) it discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.
Section 15-38-60. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those that enact it.
Section 15-38-65. No payment shall be made from state appropriated funds or other public funds to satisfy claims or judgments against governmental entities or governmental employees acting within the scope of their official duties arising under the Uniform Contribution Among Tortfeasors Act. The South Carolina Tort Claims Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his official duty. The Uniform Contribution Among Tortfeasors Act shall not apply to governmental entities.
Section 15-38-70. All acts or parts of acts which are inconsistent with the provisions of this chapter are hereby repealed."
SECTION 14. Section 29-7-20(1) of the 1976 Code, as last amended by Act 247 of 1991, is further amended to read:
"(1) A contractor or subcontractor who, for other purposes than paying the money loaned upon such the contract, transfers, invests or expends and fails to pay to a laborer, subcontractor, or materialman out of the money received as provided in Section 29-7-10 is guilty of a misdemeanor and, upon conviction, when the consideration for the work and material exceeds the value of one hundred dollars must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned not less than three months nor more than six months and when such consideration does not exceed the value of one hundred dollars must be fined not more than five hundred dollars or imprisoned not longer than thirty days is subject to an action for damages."
SECTION 15. Sections 58-23-90, 15-36-20, 15-36-30, 15-36-40, and 15-36-50 of the 1976 Code are repealed.
SECTION 16. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 17. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 18. The provisions of this act do not affect any right, privilege, or provision of the South Carolina Tort Claims Act pursuant to Chapter 78, Title 15 of the 1976 Code.
SECTION 19. This act takes effect upon approval by the Governor and applies to a cause of action arising on or after the effective date of this act.
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