H 4386 Session 110 (1993-1994)
H 4386 General Bill, By J.J. Bailey
A Bill to amend Chapter 77, Title 38, Code of Laws of South Carolina, 1976,
relating to automobile insurance, by adding Article 13 so as to enact
provisions governing noneconomic loss.
12/15/93 House Prefiled
12/15/93 House Referred to Committee on Labor, Commerce and Industry
01/11/94 House Introduced and read first time HJ-38
01/11/94 House Referred to Committee on Labor, Commerce and
Industry HJ-38
02/09/94 House Committee report: Favorable Labor, Commerce and
Industry HJ-14
02/22/94 House Objection by Rep. Jennings, Delleney, Harrelson,
White, Cobb-Hunter, HJ-14
02/22/94 House Objection by Rep. Elliott, Thomas & Anderson HJ-14
COMMITTEE REPORT
February 9, 1994
H. 4386
Introduced by REP. J. Bailey
S. Printed 2/9/94--H.
Read the first time January 11, 1994.
THE COMMITTEE ON
LABOR, COMMERCE AND INDUSTRY
To whom was referred a Bill (H. 4386), to amend Chapter 77, Title
38, Code of Laws of South Carolina, 1976, relating to automobile
insurance, by adding Article 13, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass:
THOMAS C. ALEXANDER, for Committee.
A BILL
TO AMEND CHAPTER 77, TITLE 38, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO AUTOMOBILE INSURANCE,
BY ADDING ARTICLE 13 SO AS TO ENACT PROVISIONS
GOVERNING NONECONOMIC LOSS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 77 of Title 38 of the 1976 Code is amended by
adding:
"ARTICLE 13
Noneconomic Loss
Section 38-77-1200. As used in this article, unless the context
otherwise requires:
(A) `Accidental bodily injury' means bodily injury, sickness, or
disease, or death resulting therefrom, arising out of the ownership,
operation, or use of a motor vehicle, or while occupying such vehicle,
which is accidental as to the person insured.
(B) `Economic loss' means actual pecuniary loss and actual monetary
expenses incurred by or on behalf of an injured person as the result of
an accidental bodily injury consisting only of medical expense, work
loss, replacement services loss, and death benefits.
(C) `Injured person' means a person who sustains accidental bodily
injury when eligible for benefits under a policy of automobile insurance.
The term also includes, where appropriate, the personal representative
of an estate.
(D) `Intentional misconduct' means conduct whereby harm is
intentionally caused or attempted to be caused by one who acts or fails
to act for the purpose of causing harm or with knowledge that harm is
substantially certain to follow when such conduct caused or substantially
contributed to the harm claimed for. A person does not intentionally
cause or attempt to cause harm (1) merely because his or her act or
failure to act is done with the realization that it creates a grave risk of
causing harm or (2) if the act or omission causing bodily harm is for the
purpose of averting bodily harm to oneself or another person.
(E) `Motor vehicle' is defined by Section 38-77-30(7).
(F) `Noneconomic loss' means any loss other than economic loss and
includes, but is not necessarily limited to, pain, suffering, inconvenience,
physical impairment, mental anguish, emotional pain and suffering,
hedonic damages, and loss of any of the following: earning capacity,
consortium, society, companionship, comfort, protection, marital care,
parental care, filial care, attention, advice, counsel, training, guidance,
or education. Noneconomic loss does not include economic loss caused
by pain and suffering or by physical impairment.
(G) `Occupying' means to be in or upon a motor vehicle or engaged
in the immediate act of entering into or alighting from the motor vehicle.
(H) `Operation or use' means operation or use of a motor vehicle as
a motor vehicle, including, incident to its operation or use as a vehicle,
occupying it. Operation or use of a motor vehicle does not cover
conduct within the course of a business of manufacturing, selling, or
maintaining a motor vehicle, including repairing, servicing, washing,
loading, or unloading, nor does it include such conduct not within the
course of such a business, unless such conduct occurs while occupying
a motor vehicle.
(I) `Owner' means the person or persons, other than a lienholder or
secured party, who owns or has title to a motor vehicle or is entitled to
the use and possession of a motor vehicle subject to a security interest
held by another person. Owner does not include (i) a lessee under a
lease not intended as security, or (ii) the United States of America or any
agency thereof, except with respect to motor vehicles for which it has
elected to provide insurance.
(J) `Permanent' means an injury whose effects cannot be eliminated
by further time for recovery or by further treatment and care, including
surgery.
(K) `Person' includes an organization, public or private.
(L) `Replacement services loss' means expenses reasonably incurred
in obtaining ordinary and necessary services from others, not members
of the injured person's household, in lieu of those the injured person
would have performed for the benefit of the household. Replacement
services loss does not include any loss incurred after the death of an
injured person, and the disability period shall not exceed two years from
the date of the accident.
(M) `Serious' means only an injury which has a substantial bearing
on the injured person's ability to resume substantially all of his normal
activities and lifestyle.
(N) `Serious bodily injury' means an accidental bodily injury which
results in death, serious and permanent loss of an important bodily
function, permanent and serious bodily injury determined objectively
within reasonable medical probability, or serious and permanent
disfigurement.
Section 38-77-1210. In any action of tort brought against the owner,
registrant, operator, or occupant of a motor vehicle with respect to which
a policy of automobile insurance as defined in Section 38-77-30(1) is
applicable, or against any person or organization legally responsible for
his acts or omissions, a plaintiff may recover up to one thousand dollars
in noneconomic loss in tort for pain, suffering, mental anguish, and
inconvenience because of bodily injury, sickness, or disease arising out
of the ownership, maintenance, operation, or use of such motor vehicle.
However, in the event that the injury reaches one of the following
thresholds:
(1) the injury or disease consists in whole or in part of permanent
and serious disfigurement;
(2) permanent and serious bodily injury, determined objectively,
within reasonable medical probability;
(3) permanent and serious loss of an important bodily function;
(4) the actual economic loss exceeds the policy limits of the at-fault
party; or
(5) death; then, the plaintiff may recover damages for pain,
suffering, mental anguish, and inconvenience because of bodily injury,
sickness, or disease arising out of the ownership, maintenance,
operation, or use of such motor vehicle without the imposition of the
limitation referred to above in this section.
Section 38-77-1220. The provisions of this article are not applicable
if the motor vehicle operator was driving under the influence of alcohol
or illegal drugs or is guilty of intentional misconduct.
Section 38-77-1230. In any action where the defendant contends
that the plaintiff's injury does not meet the standards set forth in Section
38-77-1210, either party may seek summary judgment on that issue. If
a motion is made, the court may determine at least thirty days before the
date set for trial whether there is a material issue of fact as to whether
the injury meets the standards of Section 38-77-1210 or if not, render
summary judgment in accordance with the undisputed facts. If the facts
regarding the nature of the injury are undisputed, the question as to
whether or not the facts render the injury as meeting the standards of
Section 38-77-1210 is a question of law to be decided by the court. In
any action to be tried before a jury where the defendant contends the
plaintiff's injury is not a serious and permanent injury but the defendant
concedes or the court determines that there is a material issue of fact as
to whether the plaintiff's injury meets the standards of Section
38-77-1210 then, upon motion of the defendant, that issue shall be
separately tried and no other evidence as to plaintiff's noneconomic loss
shall be received until that issue has been resolved. After resolution of
that issue, the amount of the plaintiff's noneconomic loss may be tried
before the same jury or a different jury, as the court may in its discretion
decide."
SECTION 2. This act takes effect October 1, 1994.
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