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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
AMENDED
February 16, 2005
H. 3008
Introduced by Reps. Cato, Bales, Clark, Barfield, Huggins, Frye, Sandifer, E.H. Pitts, Taylor, Anthony, Bailey, Battle, Bingham, Ceips, Chalk, Chellis, Clemmons, Cooper, Dantzler, Davenport, Duncan, Edge, Hamilton, Hardwick, Harrell, Hinson, Kirsh, Leach, Limehouse, Littlejohn, Loftis, McCraw, Norman, Owens, Perry, Pinson, Rice, Simrill, Skelton, D.C. Smith, G.R. Smith, J.R. Smith, Stewart, Thompson, Toole, Townsend, Tripp, Umphlett, Vaughn, Vick, Viers, Walker, White, Whitmire, Wilkins, Witherspoon, Coates, Brady, Ballentine, Ott, Mahaffey, Haley, Hagood, Bowers and Young
S. Printed 2/16/05--H. [SEC 2/17/05 2:20 PM]
Read the first time January 11, 2005.
EXPLANATION OF IMPACT:
The following agencies indicate the enactment of this bill will not have any significant, if any, impact on the General Fund of the State or on federal and/or other funds.
? Judicial Department
? State Budget and Control Board
? Department of Health and Human Services
? Patients Compensation Fund
? Workers' Compensation Fund
? State Accident Fund
? Department of Insurance
? State Department of Education
Approved By:
Don Addy
Office of State Budget
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 32 TO TITLE 15, SO AS TO ENACT THE "SOUTH CAROLINA ECONOMIC DEVELOPMENT, CITIZENS, AND SMALL BUSINESS PROTECTION ACT OF 2005", PROVIDING FOR DEFINITIONS OF THE TERMS "DAMAGES", "FAULT", AND "PERSON", SEVERAL LIABILITY IN AN ACTION FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH, A PROCEDURE FOR ASSESSING PERCENTAGES OF FAULT, JOINT LIABILITY ON ALL WHO CONSCIOUSLY AND DELIBERATELY PURSUE A COMMON PLAN TO COMMIT A TORTIOUS ACT, PLACEMENT OF THE BURDEN OF PROVING FAULT ON THE PERSON SEEKING TO ESTABLISH FAULT, AND AN EXCEPTION TO THE PROVISIONS OF THE CHAPTER; TO AMEND SECTION 15-3-640, RELATING TO AN ACTION BASED UPON A DEFECTIVE OR UNSAFE IMPROVEMENT TO REAL PROPERTY, SO AS TO DECREASE THE TIME AN ACTION MAY BE BROUGHT FROM THIRTEEN TO SIX YEARS AFTER THE SUBSTANTIAL COMPLETION OF THE IMPROVEMENT; TO AMEND SECTION 15-7-30, RELATING TO ACTIONS THAT MUST BE TRIED WHERE THE DEFENDANT RESIDES, SO AS TO DEFINE KEY TERMS AND TO PROVIDE FACTORS FOR THE COURT TO CONSIDER WHEN DETERMINING THE PRINCIPAL PLACE OF BUSINESS; TO AMEND SECTION 15-36-10, AS AMENDED, RELATING TO LIABILITY FOR ATTORNEY'S FEES AND COSTS OF FRIVOLOUS LAWSUITS, SO AS TO REPLACE THE EXISTING PROVISIONS WITH PROVISIONS REQUIRING THE SIGNATURE OF AN ATTORNEY OR PARTY ON ALL PLEADINGS AND OTHER DOCUMENTS FILED IN A CIVIL OR ADMINISTRATIVE ACTION, TO PROVIDE A PROCEDURE FOR ADMINISTERING SANCTIONS FOR A VIOLATION, AND TO PROVIDE FOR THE REPORTING OF AN ATTORNEY TO THE COMMISSION ON LAWYER CONDUCT; TO AMEND SECTION 36-2-803, RELATING TO PERSONAL JURISDICTION BASED UPON CONDUCT, SO AS TO ALLOW THE COURT TO CHANGE THE PLACE OF TRIAL WHEN THE CONVENIENCE OF WITNESSES AND THE ENDS OF JUSTICE WOULD BE PROMOTED BY THE CHANGE; TO REPEAL SECTIONS 15-36-20, 15-36-30, 15-36-40, AND 15-36-50 ALL RELATING TO FRIVOLOUS LAWSUITS, AND SECTION 58-23-90 RELATING TO VENUE IN ACTIONS AGAINST LICENSED MOTOR CARRIERS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "South Carolina Economic Development, Citizens, and Small Business Protection Act of 2005".
SECTION 2. The General Assembly finds that the sections presented in this act constitute one subject as required by Article III, Section 17 of the South Carolina Constitution, in particular finding that each change and each topic relates directly to or in conjunction with other sections to the subject of tort and other civil action reform as clearly enumerated in the title.
The General Assembly further finds that a common purpose or relationship exists among the sections, representing a potential plurality but not disunity of topics, notwithstanding that reasonable minds might differ in identifying more than one topic contained in the bill.
SECTION 3. Title 15 of the 1976 Code is amended by adding:
Section 15-32-10. Unless the context clearly requires otherwise, as used in this section:
(1) 'Damages' means pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, another theory of damages, including, but not limited to, fear of loss or illness or injury, loss of earnings and earning capacity, loss of income, medical expenses and medical care, rehabilitation services, custodial care, 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 objectively verifiable monetary losses. Damages does not include punitive damages.
(2) 'Fault' means an act or omission of a person which is a proximate cause of injury or death to another person, damages to property, tangible or intangible, or economic injury including, but not limited to, negligence, malpractice, strict liability, absolute liability, or failure to warn. Fault does not include a tort resulting from an act or omission committed with a specific intent to cause injury or damage to another or to property.
(3) 'Person' means an individual, corporation, company, association, firm, partnership, society, joint stock company, or other entity, including a governmental entity or unincorporated association of persons.
Section 15-32-20. In an action for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and may not be joint. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment must be rendered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the court, with regard to each defendant, shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault, and the amount calculated for each defendant is the maximum recoverable against that defendant.
Section 15-32-30. (A) At any time after an action is commenced against one or more defendants for personal injury, property damage, or wrongful death, a defendant may join as a co-defendant to the action any person who may be liable to the plaintiff for the personal injury, property damage, or wrongful death alleged in the plaintiff's complaint. That person must be joined to the action by service of a summons and complaint pursuant to the Rules of Civil Procedure.
(B) A defendant has one hundred twenty days following service of the summons and complaint to join a co-defendant pursuant to this section, during which time all applicable statutes of limitation are tolled.
Section 15-32-40. Joint liability must be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it or any person or entity vicariously liable for the act of another. A person held jointly liable pursuant to the provisions of this section has a right of contribution from his fellow defendants acting in concert. A defendant must be held responsible only for the portion of fault assessed to those with whom he acted in concert pursuant to the provisions of this section.
Section 15-32-50. The burden of alleging and proving fault is upon the person who seeks to establish fault.
Section 15-32-60. This section may not be construed to create a cause of action or to alter the immunity of a person.
Section 15-32-70. This chapter does not impair any right of indemnity under existing law.
Section 15-32-80. The provisions of this chapter do not apply to a motion or an action brought pursuant to the provisions of the South Carolina Uniform Contribution Among Tortfeasors Act as contained in Section 15-38-40.
Section 15-32-90. The provisions of this chapter do not affect any right, privilege, or provision of the South Carolina Tort Claims Act as contained in Chapter 78, Title 15 or the South Carolina Solicitation of Charitable Funds Act as contained in Chapter 56, Title 33."
SECTION 4. Section 15-3-640 of the 1976 Code is amended to read:
"Section 15-3-640. (A) No actions An 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 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 owners an owner or manufacturers a 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 sets forth 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 pursuant to the provisions of 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 a possessor to contract for such extended liability under pursuant to the provisions of this section. Nothing in this section shall prohibit any prohibits a person from entering into any a contractual agreement prior to before the substantial completion of the improvement which extends any a 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 5. 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 this 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 this 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 if the corporation does not have a home office within the State and has more than one manufacturing, sales, or purchasing facility 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, the action shall must be tried in the county in which the defendant resides at the time of the commencement of the action where 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 the action where 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 in the county where the action properly may be maintained according to this section to change the place of trial as provided in Section 15-7-100 or as otherwise 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) most substantial part of the alleged act or omission giving rise to the cause of action occurred.
(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:
(1) most substantial part of the alleged act or omission giving rise to the cause of action occurred; or
(2) plaintiff resides at the time the cause of action arose, or if the plaintiff is a domestic corporation, domestic limited partnership, domestic limited liability company, domestic limited liability partnership, foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership, at its principal place of business at the time 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, limited partnership, limited liability company, or limited liability partnership has its principal place of business at the time the cause of action arose; or
(2) most substantial part of the alleged act or omission giving rise to the cause of action occurred.
(F) A civil action tried pursuant to this section against a foreign corporation required to possess a certificate of authority pursuant to the provisions of Section 33-15-101 et seq., a foreign limited partnership required to possess a certificate of authority pursuant to the provisions of Section 33-15-101 et seq., foreign limited liability company required to possess a certificate of authority pursuant to the provisions of Section 33-15-101 et seq., or foreign limited liability partnership required to possess a certificate of authority pursuant to the provisions of Section 33-15-101 et seq. must be brought and tried in the county in which the:
(1) most substantial part of the alleged act or omission giving rise to the cause of action occurred; or
(2) foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership has its principal place of business at the time the cause of action arose.
(G) A civil action tried pursuant to this section against a foreign corporation not required to possess a certificate of authority pursuant the provisions of Section 33-15-101 et seq., foreign limited partnership not required to possess a certificate of authority pursuant to the provisions of Section 33-15-101 et seq., foreign limited liability company not required to possess a certificate of authority pursuant to the provisions of Section 33-15-101 et seq., or foreign limited liability partnership not required to possess a certificate of authority pursuant to the provisions of Section 33-15-101 et seq. must be brought and tried in the county in which the:
(1) most substantial part of the alleged act or omission giving rise to the cause of action occurred;
(2) plaintiff resides at the time the cause of action arose, or if the plaintiff is a domestic corporation, domestic limited partnership, domestic limited liability company, domestic limited liability partnership, foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership, at its principal place of business at the time the cause of action arose; or
(3) foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership has its principal place of business at the time the cause of action arose.
(H) Owning property and transacting business in a county is insufficient in and of itself to establish the principal place of business for a corporation for purposes of this section."
SECTION 6. 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. 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)(1) Each 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) Each 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 he:
(a) has read the document;
(b) reasonably believes that under the facts his claim may be warranted pursuant to the existing law or, if it is not warranted pursuant to 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 to merely harass or injure the other party; and
(d) believes that it is not frivolous, interposed for delay, or brought for a purpose other than securing proper discovery, joinder of parties, or adjudication of the claim 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 fully disclose facts necessary to put his attorney under 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 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 or a party has violated subsection (A)(4), the court, upon its own motion or the motion of a party or by petition in collateral proceedings, may impose an appropriate sanction upon the person in violation.
(3) Sanctions may include:
(a) an order for the party or pro se litigant to pay the reasonable costs and attorneys fees;
(b) an order for the attorney to pay a reasonable fine to be paid to the court; or
(c) a directive of a nonmonetary nature designed to deter the person from bringing a future frivolous action or an action in bad faith.
(4) In determining whether an attorney, pro se litigant, or party has violated this act, the court shall take into account the:
(a) number of parties;
(b) complexity of the claims and defenses;
(c) length of time available to the attorney or party to investigate and conduct discovery; and
(d) information disclosed or undisclosed to the attorney or pro se litigant through discovery and adequate investigation.
(C) A person is entitled to notice and an opportunity to respond before the imposition of sanctions pursuant to the provisions of this section. A court or party proposing a sanction pursuant to the provisions of this section shall notify the court and all parties of the conduct determined to constitute a violation of the provisions of this section and explain the basis for the potential sanction imposed. Upon notification the attorney or party has thirty days to:
(1) withdraw the document or argument constituting a violation of the provisions of this section;
(2) respond to the allegations of violation of the provisions of this section; or
(3) mitigate the effects of the violation of the provisions 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 as provided in subsection (C)(1);
(b) a copy of the response indicated in subsection (C)(2); or
(c) an explanation of mitigation indicated in subsection (C)(3).
(D) The provisions of this section apply in addition to all other remedies available at law or in equity."
SECTION 7. Section 15-38-20(A) of the 1976 Code , as added by Act 432 of 1988, is amended to read:
"(A) Except as otherwise provided in this chapter, where when 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."
SECTION 8. 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 this 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)."
SECTION 9. Sections 15-36-20, 15-36-30, 15-36-40, 15-36-50, and 58-23-90 of the 1976 Code are repealed.
SECTION 10. 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 11. 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 12. The provisions of this Act do not affect any right, privilege, or provision of the South Carolina Uniform Contribution Among Tortfeasors Act as contained in Chapter 38 of Title 15 of the 1976 Code of South Carolina except as expressly provided in this Act.
SECTION 13. 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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