Bill 3019

                    Current Status

Bill Number:                       3019
Type of Legislation:               General Bill GB
Introducing Body:                  House
Introduced Date:                   19970114
Primary Sponsor:                   Kirsh 
All Sponsors:                      Kirsh, Woodrum, Witherspoon,
                                   Stuart, Bailey, Meacham and
                                   Wilder
Drafted Document Number:           GJK\23038SD.97
Residing Body:                     House
Current Committee:                 Judiciary Committee 25 HJ
Subject:                           Civil actions, punitive
                                   damages; torts and courts

Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________
House   19970114  Introduced, read first time,             25 HJ
                  referred to Committee
House   19961211  Prefiled, referred to Committee          25 HJ

TO AMEND TITLE 15, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CIVIL REMEDIES AND PROCEDURES BY ADDING CHAPTER 34 SO AS TO ESTABLISH STANDARDS AND PROCEDURES FOR THE RECOVERY OF PUNITIVE DAMAGES IN CIVIL ACTIONS, INCLUDING A LIMIT ON THE MAXIMUM AMOUNT OF PUNITIVE DAMAGES WHICH MAY BE AWARDED, THE MANNER IN WHICH PUNITIVE DAMAGES MUST BE STATED AND PLED, THE RESPONSIBILITIES OF THE TRIER OF FACT AND THE COURT IN REGARD TO PUNITIVE DAMAGES, AND THE AWARDING OF ATTORNEY'S FEES IN DEFENSE OF FRIVOLOUS OR MALICIOUS PUNITIVE DAMAGE CLAIMS; AND TO REPEAL SECTION 15-33-135 OF THE 1976 CODE RELATING TO PUNITIVE DAMAGES AND THE BURDEN OF PROOF.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 15 of the 1976 Code is amended by adding:

Section 15-34-10. Punitive damages may be awarded in a civil action, subject to the provisions of this chapter, to punish a defendant for wilful, wanton, or reckless conduct and to deter the defendant and others from committing similar wrongful acts.

Section 15-34-20. As used in this chapter:

(1) 'Claimant' means a party, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, seeking recovery of punitive damages.

(2) 'Compensatory damages' includes nominal damages.

(3) 'Defendant' means a party, including a counterdefendant, cross-defendant, or third-party defendant, from whom a claimant seeks relief with respect to punitive damages.

(4) 'Fraud' does not include constructive fraud unless an element of intent is present.

(5) 'Malice' means a sense of personal ill will toward the claimant that activated or incited the defendant to perform the act or undertake the conduct that resulted in harm to the claimant.

(6) 'Punitive damages' means extracompensatory damages awarded for the purposes set forth in Section 15-34-10.

(7) 'Wilful, wanton, or reckless conduct' means the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know are reasonably likely to result in injury, damage, or other harm. 'Wilful, wanton, or reckless conduct' means more than gross negligence.

Section 15-34-30. This chapter applies to every claim for punitive damages, regardless of whether the claim for relief is based on a statutory or a common-law right of action or based in equity. In an action subject to this chapter, in whole or in part, the provisions of this chapter prevail over any other provision of law to the contrary.

Section 15-34-40. (A) Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:

(1) fraud;

(2) malice; or

(3) wilful, wanton, or reckless conduct.

(B) The claimant must prove the existence of an aggravating factor by clear and convincing evidence.

(C) Punitive damages shall not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another. Punitive damages may be awarded against a person only if that person participated in the conduct constituting the aggravating factor giving rise to the punitive damages or if, in the case of a corporation, the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.

(D) Punitive damages shall not be awarded against a person solely for breach of contract.

Section 15-34-50. A claimant must elect, prior to judgment, between punitive damages and any other remedy pursuant to another statute that provides for multiple damages.

Section 15-34-60. (A) In all actions seeking an award of punitive damages, the trier of fact shall determine the amount of punitive damages separately from the amount of compensation for all other damages.

(B) Punitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars, whichever is greater. If a trier of fact returns a verdict for punitive damages in excess of the maximum amount specified under 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) of this section shall not be made known to the trier of fact through any means, including voir dire, the introduction into evidence, argument, or instructions to the jury.

Section 15-34-70. Section 15-34-60(B) shall not apply to a claim for punitive damages for injury or harm arising from a defendant's operation of a motor vehicle if the actions of the defendant in operating the motor vehicle would give rise to an offense of driving while under the influence of intoxicating liquor, drugs, or like substances.

Section 15-34-80. Upon the motion of a defendant, the issues of liability for compensatory damages and the amount of compensatory damages, if any, shall be tried separately from the issues of liability for punitive damages and the amount of punitive damages, if any. Evidence relating solely to punitive damages shall not be admissible until the trier of fact has determined that the defendant is liable for compensatory damages and has determined the amount of compensatory damages. The same trier of fact that tried the issues relating to compensatory damages shall try the issues relating to punitive damages.

Section 15-34-90. In determining the amount of punitive damages, if any, to be awarded, the trier of fact:

(1) shall consider the purposes of punitive damages set forth in Section 15-34-10; and

(2) may consider only that evidence that relates to the following:

(a) the reprehensibility of the defendant's motives and conduct;

(b) the likelihood, at the relevant time, of serious harm;

(c) the degree of the defendant's awareness of the probable consequences of its conduct;

(d) the duration of the defendant's conduct;

(e) the actual damages suffered by the claimant;

(f) any concealment by the defendant of the facts or consequences of its conduct;

(g) the existence and frequency of any similar past conduct by the defendant;

(h) whether the defendant profited from the conduct;

(i) the defendant's ability to pay punitive damages, as evidenced by its revenues or net worth.

Section 15-34-100. In a jury trial, the court shall instruct the jury with regard to items (1) and (2) of Section 15-34-90.

Section 15-34-110. The court shall award reasonable attorney's fees, resulting from the defense against the punitive damages claim, against a claimant who files a claim for punitive damages that the claimant knows or should have known to be frivolous or malicious. The court shall award reasonable attorney's fees against a defendant who asserts a defense in a punitive damages claim that the defendant knows or should have known to be frivolous or malicious.

Section 15-34-120. When reviewing the evidence regarding a finding by the trier of fact concerning liability for punitive damages in accordance with Section 15-34-40(A), or regarding the amount of punitive damages awarded, the trial court shall state in a written opinion its reasons for upholding or disturbing the finding or award. In doing so, the court shall address with specificity the evidence, or lack thereof, as it bears on the liability for or the amount of punitive damages, in light of the requirements of this chapter.

Section 15-34-130. A demand for punitive damages shall be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages shall be averred with particularity. The amount of damages shall be pled in accordance with applicable court rules adopted by the Supreme Court.

Section 15-34-140. The provisions of this chapter do not apply to actions brought under the South Carolina Tort Claims Act."

SECTION 2. Section 15-33-135 of the 1976 Code is repealed.

SECTION 3. The provisions of this act are severable. If any portion of this act is declared unconstitutional or the application of this act to any person or circumstances is held invalid, the remaining portions and their applicability to any person or circumstances are valid.

SECTION 4. This act takes effect July 1, 1997, and applies to claims arising on or after that date.