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Bill Number: 2610 Ratification Number: 471 Act Number 432 Introducing Body: House Subject: Relating to limitation of civil actions
(A432, R471, H2610)
AN ACT TO AMEND SECTION 15-3-530, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO LIMITATION OF CIVIL ACTIONS, SO AS TO REDUCE THE LIMITATION PERIOD FROM SIX YEARS TO THREE YEARS AND TO REVISE CERTAIN CAUSES OF ACTION TO WHICH THE SECTION APPLIES; TO AMEND SECTION 15-3-535, RELATING TO THE TIME PERIOD WITHIN WHICH CERTAIN ACTIONS MUST BE COMMENCED, SO AS TO REDUCE THIS PERIOD TO THREE YEARS, TO REVISE THE CAUSES OF ACTION TO WHICH THE SECTION APPLIES, AND TO DELETE REFERENCES TO ACTIONS FOR CRIMINAL CONVERSATION; TO AMEND SECTION 15-3-545, RELATING TO THE STATUTE OF LIMITATIONS IN MALPRACTICE ACTIONS, SO AS TO REVISE THE STATUTE OF LIMITATIONS ON THE NEGLIGENT PLACEMENT OF AN APPLIANCE OR APPARATUS IN ANY PERSON BY STIPULATING THAT THE PERSON HAS AT LEAST THREE YEARS AFTER THE PLACEMENT TO BRING THE ACTION, AND TO PROVIDE A TOLLING PERIOD OF NOT MORE THAN SEVEN YEARS ON ACCOUNT OF MINORITY; TO AMEND THE 1976 CODE BY ADDING SECTION 15-33-125 SO AS TO PERMIT A NEW TRIAL LIMITED TO DAMAGES ONLY IN THOSE INSTANCES WHERE THE PLAINTIFF WAS ENTITLED TO A DIRECTED VERDICT OF LIABILITY; BY ADDING SECTION 15-33-135 SO AS TO PROVIDE THAT IN ANY CIVIL ACTION WHERE PUNITIVE DAMAGES ARE CLAIMED, THE PLAINTIFF HAS THE BURDEN OF PROVING SUCH DAMAGES BY CLEAR AND CONVINCING EVIDENCE; TO AMEND TITLE 15 OF THE 1976 CODE, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING CHAPTER 36 so AS TO ENACT THE SOUTH CAROLINA FRIVOLOUS CIVIL PROCEEDINGS SANCTIONS ACT, AND BY ADDING CHAPTER 38 SO AS TO ENACT THE SOUTH CAROLINA CONTRIBUTION AMONG TORTFEASORS ACT; TO AMEND SECTION 38-79-410, RELATING TO THE DEFINITION OF LICENSED HEALTH CARE PROVIDERS FOR PURPOSES OF THE PATIENTS COMPENSATION FUND FOR THE BENEFIT OF THESE LICENSED HEALTH CARE PROVIDERS, SO AS TO REVISE THIS DEFINITION TO INCLUDE OPTOMETRISTS AND PODIATRISTS THEREIN AND TO PROVIDE THAT THE DEPARTMENT OF INSURANCE SHALL REVIEW ALL FORMS OF INSURANCE COVERED BY ANY SECTION OF THIS ACT WITHIN ONE YEAR OF THE EFFECTIVE DATE AND SHALL ORDER RATE REDUCTIONS AS HAY APPEAR APPROPRIATE TO THE CHIEF INSURANCE COMMISSIONER.
Be it enacted by the General Assembly of the State of South Carolina:
Limitation period reduced
SECTION 1. Section 15-3-530 of the 1976 Code is amended to read:
Section 15-3-530. Within three years:
(1) an action upon a contract, obligation, or liability, express or implied, excepting those provided for in Section 15-3-520;
(2) an action upon a liability created by statute other than a penalty or forfeiture;
(3) an action for trespass upon or damage to real property;
(4) an action for taking, detaining, or injuring any goods or chattels including an action for the specific recovery of personal property;
(5) an action for any injury to the person or rights of another, not arising on contract and not enumerated by law, and those provided for in Section 15-3-545;
(6) an action under Sections 15-51-10 to 15-51-60 for death by wrongful act, the period to begin to run upon the death of the person on account of whose death the action is brought;
(7) any action for relief on the ground of fraud in cases which prior to the adoption of the Code of Civil Procedure in 1870 were solely cognizable by the court of chancery, the cause of action in the case not considered to have accrued until the discovery by the aggrieved party of the facts constituting the fraud;
(8) an action on any policy of insurance, either fire or life, whereby any person or property, resident or situate in this State, may be or may have been insured, or for or on account of any loss arising under the policy, any clause, condition, or limitation contained in the policy to the contrary notwithstanding; and
(9) an action against directors or stockholders of a monied corporation or a banking association to recover a penalty or forfeiture imposed or to enforce a liability created by law, the cause of action in the case not considered to have accrued until the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached or the liability was created, unless otherwise provided in the law under which the corporation is organized.
Statute of limitations
SECTION 2. Section 15-3-535 of the 1976 Code is amended to read:
Section 15-3-535. Except as to actions initiated under Section 15-3-545, all actions initiated under Section 15-3-530(5) must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action.
Three years to bring certain actions and tolling period for minority
SECTION 3. Section 15-3-545 of the 1976 Code is amended to read:
Section 15-3-545. (A) In any action, other than actions controlled by subsection (B), to recover damages for injury to the person arising out of any medical, surgical, or dental treatment, omission, or operation by any licensed health care provider as defined in Article 5, Chapter 79, Title 38 acting within the scope of his profession must be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence, or as tolled by this section.
(B) When the action is for damages arising out of the placement and inadvertent, accidental, or unintentional leaving of a foreign object in the body or person of any one or the negligent placement of any appliance or apparatus in or upon any such person by any licensed health care provider acting within the scope of his profession by reason of any medical, surgical, or dental treatment or operation, the action must be commenced within two years from date of discovery or when it reasonably ought to have been discovered; provided, that, in no event shall there be a limitation on the commencement of the action less than three years after the placement or leaving of the appliance or apparatus.
(C) The provisions of this section apply only to causes of action which arise after June 10, 1977, and, as to causes of action which arise prior to June 10, 1977, the statute of limitations existing prior to June 10, 1977, applies.
(D) Notwithstanding the provisions of Section 15-3-40, if a person entitled to bring an action against a licensed health care provider acting within the scope of his profession is under the age of majority at the date of the treatment, omission, or operation giving rise to the cause of action, the time period or periods limiting filing of the action are not tolled for a period of more than seven years on account of minority, and in any case more than one year after the disability ceases. Such time limitation is tolled for minors for any period during which parent or guardian and defendant s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor.
Limitations on new trial; plaintiff s burden
SECTION 4. Chapter 33, Title 15, the 1976 Code is amended by adding:
Section 15-33-125. A new trial may be granted to the plaintiff on the issue of damages only and not liability when the only reasonable inference to be drawn from all the evidence, viewed in the light most favorable to the defendant, is that the plaintiff is entitled to a verdict in his favor on the issue of liability as a matter of law. Unless the plaintiff is entitled to a directed verdict on the issue of liability, any new trial must include both issues of liabilitY and damages. Section 15-33-135. In any civil action where punitive damages are claimed, the plaintiff has the burden of proving such damages by clear and convincing evidence.
Contribution among tortfeasors
SECTION 5. Title 15 of the 1976 Code is amended by adding:
South Carolina Contribution Among Tortfeasors Act
Section 15-38-10. This chapter may be cited as the Uniform Contribution Among Tortfeasors Act.
Section 15-38-20. (A) Except as otherwise provided in this chapter, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
(B) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.
(C) There is no right of contribution in favor of any tortfeasor who has intentionally caused or contributed to the injury or wrongful death.
(D) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable.
(E) A liability insurer, who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer, is subrogated to the tortfeasor s right of contribution to the extent of the amount it has paid in excess of the tortfeasor s pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.
(F) This chapter does not impair any right of indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.
(G) This chapter does not apply to breaches of trust or of other fiduciary obligation.
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 resulting damages against the defendant or defendants named in the action is determined. Once the issue of liability has been resolved, subJect to Section 15-38-20(B), a defendant has the right to seek contribution against any judgment defendant and other persons who were not made parties to the action.
(C) If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review.
(D) If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either (1) discharged by payment the common liability within the statute of limitations period applicable to claimant s right of action against him and has commenced his action for contribution within one year after payment, or (2) agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution. (E) The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.
(F) The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.
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 15-38-70. All acts or parts of acts which are inconsistent with the provisions of this chapter are hereby repealed.
Sanctions for frivolous civil proceedings
SECTION 6. Title 15 of the 1976 Code is amended by adding:
South Carolina Frivolous Civil Proceedings Sanctions Act
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.
Section 15-36-20. Any person who takes part in the procurement, initiation, continuation, or defense of civil proceedings must be considered to have acted to secure a proper purpose as stated in item (1) of Section 15-36-10 if he reasonably believes in the existence of the facts upon which his claim is based and
(1) reasonably believes that under those facts his claim may be valid under the existing or developing law; or
(2) relies upon the advice of counsel, sought in good faith and given after full disclosure of all facts within his knowledge and information which may be relevant to the cause of action; or
(3) believes, as an attorney of record, 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.
Section 15-36-30. When the essential elements of this chapter have been established as provided in Section 15-36-10, a person is entitled to recover his attorney s fees and court costs reasonably incurred in litigating the proceedings. The entitlement of the aggrieved person must be determined by the trial judge at the conclusion of a trial upon motion of the aggrieved party stating the manner in which the other party is alleged to have acted in violation of this statute. The court shall base its decision upon a review of the proceedings and affidavits submitted by each person affected.
Section 15-36-40. In a motion filed pursuant to this chapter the aggrieved person has the burden of proving:
(1) the other party has procured, initiated, continued, or defended the civil proceedings against him;
(2) the proceedings were terminated in his favor;
(3) the primary purpose for which the proceedings were procured, initiated, continued, or defended was not that of securing the proper discovery, joinder of parties, or adjudication of the civil proceedings;
(4) the aggrieved person has incurred attorney s fees and court costs; and
(5) the amount of the fees and costs set forth in item (4).
Section 15-36-50. Upon a finding that a person has violated the provisions of this chapter, the court shall determine the appropriate fees and costs and enter judgment accordingly.
Department of Insurance review
SECTION 7. The South Carolina Department of Insurance shall review all forms of insurance covered by any section of this act within one year of the effective date and shall order rate reductions as may appear appropriate to the Chief Insurance Commissioner.
SECTION 8. Section 38-79-410 of the 1976 Code is amended to read:
Section 38-79-410. Licensed health care providers means physicians and surgeons; directors, officers, and trustees of hospitals; nurses; oral surgeons; dentists; pharmacists; chiropractors; optometrists; podiatrists; hospitals; nursing homes; or any similar category of licensed health care providers.
SECTION 9. If any provision of this act or the application thereof to any person is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application and to this end the provisions of this act are severable.
SECTION 10. This act takes effect upon approval by the Governor and applies to those causes of action arising or accruing on or after the effective date of this act.