South Carolina General Assembly
116th Session, 2005-2006

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S. 2

STATUS INFORMATION

General Bill
Sponsors: Senators Leatherman, Bryant, Mescher, Gregory, Alexander, Fair and Richardson
Document Path: l:\s-res\hkl\006tort.mrh.doc

Introduced in the Senate on January 11, 2005
Currently residing in the Senate Committee on Judiciary

Summary: Economic Development, Citizens, and Small Business Protection Act of 2005; Tort Reform Bill

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
   12/8/2004  Senate  Prefiled
   12/8/2004  Senate  Referred to Committee on Judiciary
   1/11/2005  Senate  Introduced and read first time SJ-77
   1/11/2005  Senate  Referred to Committee on Judiciary SJ-77

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

12/8/2004

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO ENACT THE SOUTH CAROLINA ECONOMIC DEVELOPMENT, CITIZENS, AND SMALL BUSINESS PROTECTION ACT OF 2005 BY ADDING CHAPTER 32 TO TITLE 15 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976 SO AS TO ESTABLISH A LIMIT OF TWO HUNDRED FIFTY THOUSAND DOLLARS FOR NONECONOMIC DAMAGES THAT MAY BE AWARDED A PLAINTIFF IN A PERSONAL INJURY ACTION AND TO PROVIDE THAT PUNITIVE DAMAGES MAY BE AWARDED FOR FRAUDULENT OR WILFUL OR INTENTIONAL CONDUCT SPECIFICALLY INTENDED TO HARM THE PERSON SEEKING PUNITIVE DAMAGES, TO REQUIRE A PLAINTIFF, PRIOR TO JUDGMENT, TO ELECT BETWEEN PUNITIVE DAMAGES AND OTHER DAMAGES AVAILABLE UNDER ANOTHER REMEDY, TO SPECIFY FACTORS THAT MUST BE CONSIDERED IN AWARDING PUNITIVE DAMAGES; TO ADD CHAPTER 40 TO TITLE 15 SO AS TO PROVIDE THAT IN ALL TORT ACTIONS EVIDENCE OF COLLATERAL SOURCE PAYMENTS TO BE MADE TO THE CLAIMANT IS ADMISSIBLE AND TO REQUIRE SPECIFIC FINDINGS TO BE MADE FOR THE AMOUNT OF CERTAIN PAST AND FUTURE DAMAGES; TO AMEND SECTION 34-31-20, AS AMENDED, RELATING TO THE ANNUAL LEGAL RATE OF INTEREST ON MONEY DECREES AND JUDGMENTS, SO AS TO CHANGE THE INTEREST RATE FROM TWELVE PERCENT TO SIX PERCENT; TO AMEND SECTION 15-1-310, RELATING TO IMMUNITY FROM LIABILITY FOR PERSONS, WHO IN GOOD FAITH, RENDER EMERGENCY CARE AT THE SCENE OF AN ACCIDENT, SO AS PROVIDE IMMUNITY TO HEALTH CARE PROVIDERS, WHO WITH NO EXPECTATION OF PAYMENT, RENDER MEDICAL CARE AND TO APPLY THE LIMITS OF LIABILITY PROVIDED FOR IN THE TORT CLAIMS ACT FOR ANY CLAIM BROUGHT AGAINST SUCH PERSONS; TO ADD SECTION 15-1-315 SO AS TO PROVIDE IMMUNITY FROM LIABILITY TO A HEALTH CARE PROVIDER FOR AN INJURY SUSTAINED BY A PATIENT FROM TAKING A PRESCRIPTION DRUG OR USING A MEDICAL DEVICE PRESCRIBED BY THE PROVIDER IN ACCORDANCE WITH INSTRUCTIONS OF THE UNITED STATES FOOD AND DRUG ADMINISTRATION; TO AMEND SECTION 56-5-6540, AS AMENDED, RELATING TO VIOLATIONS OF MANDATORY SEATBELT USAGE, SO AS TO PROVIDE THAT SUCH VIOLATIONS ARE ADMISSIBLE TO PROVE CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OR CERTAIN OTHER DEFENSES IN A CIVIL ACTION; TO ADD CHAPTER 47 TO TITLE 15 SO AS TO ESTABLISH PROCEDURES FOR A HOMEOWNER OR PURCHASER TO ASSERT A CLAIM AGAINST A CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL FOR A CONSTRUCTION DEFECT IN A RESIDENTIAL DWELLING, TO REQUIRE A CLAIMANT TO COMPLY WITH THESE PROCEDURES BEFORE COMMENCING LITIGATION FOR SUCH DEFECTS, AND TO PROHIBIT A PERSON FROM PROVIDING ANYTHING OF MONETARY VALUE TO A PROPERTY MANAGER, MEMBER. OR OFFICER OF AN EXECUTIVE BOARD OF A HOMEOWNER'S ASSOCIATION TO INDUCE THE INDIVIDUAL TO ENCOURAGE OR DISCOURAGE THE ASSOCIATION TO FILE A CLAIM FOR SUCH DEFECTS AND TO PROVIDE PENALTIES FOR VIOLATIONS; TO AMENDED SECTION 15-78-20, AS AMENDED, RELATING TO THE TORT CLAIMS ACT, SO AS TO DELETE PROVISIONS AUTHORIZING RECOVERY AGAINST A GOVERNMENTAL HEALTH FACILITY FOR A CLAIM ARISING BEFORE THE EFFECTIVE DATE OF THE TORT CLAIMS ACT IF THE FACILITY MAINTAINED LIABILITY INSURANCE COVERAGE AND TO DELETE THE PROVISION SPECIFICALLY DELAYING INCLUSION OF PHYSICIANS AND DENTISTS IN THE TORT CLAIMS ACT UNTIL JANUARY 1, 1989; TO AMEND SECTION 15-78-30, AS AMENDED, RELATING TO THE DEFINITION OF TERMS USED IN THE TORT CLAIMS ACT, SO AS TO REVISE THE DEFINITION OF "EMPLOYEE' AND "SCOPE OF OFFICIAL DUTY" TO INCLUDE HEALTH CARE PROVIDERS RENDERING CARE UNDER MEDICAID AND OTHER PUBLICLY FUNDED HEALTH CARE PROGRAMS AND TO DEFINE "DISCRETIONARY ACT"; TO AMEND SECTIONS 15-78-70 AND 15-78-120, BOTH AS AMENDED, RELATING RESPECTIVELY TO THE STATE TORT CLAIMS ACT BEING THE EXCLUSIVE REMEDY FOR CLAIMS AGAINST THE STATE FOR ACTS OF ITS EMPLOYEES AND TO LIMITATIONS ON THE AMOUNT OF DAMAGES A PERSON MAY RECOVER, SO AS TO DELETE PROVISIONS PROVIDING NO LIMIT ON THE AMOUNT OF LIABILITY AGAINST PHYSICIANS OR DENTISTS RENDERING SERVICES WHICH ARE PAID FROM A SOURCE OTHER THAN A GOVERNMENTAL SALARY AND TO DELETE PROVISIONS WHICH ESTABLISH A HIGHER LIMIT OF LIABILITY UNDER THE TORT CLAIMS ACT FOR ACTIONS AGAINST GOVERNMENTAL PHYSICIANS AND DENTISTS ACTING WITHIN THE SCOPE OF THEIR GOVERNMENTAL EMPLOYMENT; TO ADD SECTION 15-78-55 SO AS TO PROVIDE THAT EACH EXCEPTION TO THE WAIVER OF IMMUNITY UNDER THE TORT CLAIMS ACT IS SEPARATE FROM OTHER EXCEPTIONS AND EACH RENDERS THE GOVERNMENTAL ENTITY IMMUNE; TO AMEND SECTION 15-78-100, AS AMENDED, RELATING TO THE STATUTE OF LIMITATIONS AND JURISDICTION UNDER THE TORT CLAIMS ACT, SO AS TO AUTHORIZE A GOVERNMENTAL ENTITY TO IMPLEAD A PERSON OR ENTITY IN AN ACTION; TO AMEND SECTION 15-3-640, RELATING TO ACTIONS BASED ON DEFECT OR UNSAFE CONDITION OF IMPROVEMENT TO REAL PROPERTY, SO AS TO CHANGE THE STATUTE OF LIMITATIONS FROM THIRTEEN YEARS TO SIX YEARS; TO ADD SECTION 15-3-645 SO AS TO ESTABLISH A TEN YEAR STATUTE OF LIMITATIONS ON ACTIONS BASED UPON AN ALLEGED DEFECT OR FAILURE IN A PRODUCT; TO ADD CHAPTER 41 TO TITLE 15 SO AS TO PROVIDE THAT IN AN ACTION FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH, THE LIABILITY FOR EACH DEFENDANT IS SEVERAL ONLY AND MUST BE ALLOCATED TO THE DEFENDANTS BASED ON EACH DEFENDANT'S PERCENTAGE OF FAULT AND TO ESTABLISH CRITERIA FOR ESTABLISHING THE PERCENTAGES OF FAULT; TO AMEND CHAPTER 36, TITLE 15, RELATING TO SOUTH CAROLINA FRIVOLOUS CIVIL PROCEEDINGS SANCTIONS ACT, SO AS TO REPLACE THE PROVISIONS OF THAT CHAPTER WITH PROVISIONS REQUIRING AN ATTORNEY FOR A PLAINTIFF TO SIGN DOCUMENTS FILED IN A CIVIL OR ADMINISTRATIVE ACTION, TO PROVIDE THAT THE SIGNING CONSTITUTES CERTIFICATION THAT THE DOCUMENT IS NOT FRIVOLOUS OR INTERPOSED FOR DELAY, AND TO PROVIDE SANCTIONS; TO AMEND SECTION 15-7-30, RELATING TO ACTIONS WHICH MUST BE TRIED IN THE COUNTY IN WHICH THE DEFENDANT RESIDES, SO AS TO FURTHER PROVIDE FOR THE PROPER VENUE IF THE DEFENDANT IS A NONRESIDENT, A DOMESTIC CORPORATION, OR A FOREIGN CORPORATION; TO REPEAL SECTION 15-33-135, RELATING TO THE EVIDENTIARY STANDARD FOR PROVING PUNITIVE DAMAGES; TO REPEAL SECTION 44-7-50, RELATING TO THE MODIFICATION OF THE DOCTRINES OF CHARITABLE AND SOVEREIGN IMMUNITY; TO REPEAL SECTION 58-23-90, RELATING TO THE PROPER VENUE IN WHICH TO BRING AN ACTION AGAINST A LICENSED MOTOR CARRIER; AND TO REPEAL CHAPTER 38, TITLE 15, RELATING TO THE UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT.

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

Part I

Act Citation and General Assembly Findings

SECTION    1.    This act may be cited as the "South Carolina Economic Development, Citizens and Small Business Protections 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.

Part II

Limitations on Damages

SECTION    3.    Title 15 of the 1976 Code is amended by adding:

"CHAPTER 32

Damages

Article 1

Noneconomic Damage Awards

Section 15-32-10.    This article may be cited as the 'South Carolina Noneconomic Damage Awards Act of 2005'.

Section 15-32-20.    As used in this chapter, unless the context clearly requires otherwise:

(1)    'Actual economic damages' means objectively verifiable 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 objectively verifiable monetary losses.

(2)    'Claimant' means the person suffering personal injury.

(3)    'Noneconomic damages' means subjective, 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.    In any personal injury action, the prevailing plaintiff may be awarded:

(1)    compensation for actual economic damages suffered by the claimant; and

(2)    compensation for the noneconomic damages suffered by the claimant not to exceed two hundred fifty thousand dollars."

Article 3

Punitive Damages

Section 15-32-310    Subject to the provisions of this chapter, punitive damages may be awarded in a civil action to punish a defendant or to deter repetition of similar acts only for fraudulent or wilful or intentional conduct specifically intended to harm the person seeking recovery of punitive damages.

Section 15-32-320.    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)    'Fraudulent' means acts or conduct of a defendant taken with the specific intent to cause harm to a claimant and does not include constructive fraud unless the element of specific intent to cause harm to the claimant is present.

(5)    'Malice' means actual malice and the defendant's personal ill-will toward the claimant that activated or incited the defendant to perform the act or undertake the conduct resulting in harm to the claimant.

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

(7)    'Wilful or intentional conduct' means the acts or conduct of a defendant taken or performed with malice and with the specific intent to cause harm to a claimant and does not include acts or conduct which are negligent or grossly negligent.

Section 15-32-330.    (A)    This chapter 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 chapter, in whole or in part, the provisions of this chapter prevail over any other provision of law to the contrary.

(B)    The provisions of this chapter do not apply to actions brought under the South Carolina Tort Claims Act, as provided for in Chapter 78 of Title 15, for which punitive damages are not recoverable.

Section 15-32-340.    (A)    Punitive damages may be recovered 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 or intentional conduct.

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

(C)    Punitive damages may not be recovered against a defendant solely on the basis of the defendant's vicarious liability for the acts of another. Punitive damages may be awarded against a defendant only if that defendant participated in the conduct constituting the aggravating factor giving rise to the punitive damages with the specific intent to harm the claimant of if, in the case of corporation, the officers, directors, or managers of the corporation participated in or directed the conduct constituting the aggravating factor giving rise to the recovery of punitive damages with the specific intent to harm the claimant.

Section 15-32-350.    A claimant shall elect, prior to judgment, between punitive damages awarded pursuant to the provisions of this chapter or any other remedy available pursuant to another statute that provides for multiple damages.

Section 15-32-360.    (A)    In all actions seeking an award of punitive damages, the trier of fact must determine and state the amount of punitive damages separately from the amount of compensatory damages.

(B)    Punitive damages awarded against a defendant must not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars, whichever is less. 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) must not be made known to the trier of fact through any means, including voir dire, the introduction of evidence, argument of counsel, or instructions to the jury.

Section 15-32-370.    Upon motion of a defendant, the issues of liability for compensatory damages and the amount of compensatory damages, if any must 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 is not 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 must try the issues relating punitive damages.

Section 15-32-380.    In determining the amount of punitive damages, if any, awarded in a civil action, the trier of fact:

(1)    shall consider the purposes of punitive damages, as provided for in Section 15-32-310;

(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 or injury to the claimant;

(c)    the degree of the defendant's awareness of the consequences of the fraudulent, wilful, or intentional acts or 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 the defendant's 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 the defendant's revenues or net worth.

Section 15-32-390.    When reviewing the evidence regarding a finding by the trier of fact concerning liability for punitive damages in accordance with Section 15-32-340(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 trial court shall address with specificity the evidence , or lack of evidence, as it bears on the liability for or the amount of punitive damages in light of the requirements of this chapter.

Section 15-32-395.    A demand for punitive damages must be stated specifically, except for the amount, in the complaint and the aggravating factor that supports the award of punitive damages must be averred with particularity. The amount of damages must be pled in accordance with applicable court rules."

SECTION    4.    Title 15 of the 1976 Code is amended by adding:

"CHAPTER 40

Elimination of Double Recoveries Act

Section 15-40-10.    This chapter may be cited as the 'Elimination of Double Recoveries Act'.

Section 15-40-20.    As used in this chapter, unless the context clearly requires otherwise:

(1)    'Collateral source' means a benefit paid or payable to the claimant, or on his behalf, under, from, or pursuant to:

(a)    the United States Social Security Act;

(b)    a state or federal income replacement, disability, workers' compensation act or another act designed to provide partial or full wage or income replacement;

(c)    an accident, health or sickness, income or wage replacement insurance, income disability insurance, casualty or property insurance plan, including automobile accident and homeowners' insurance benefits, or any other insurance benefits, except life insurance benefits;

(d)    a contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, or dental services or other health care services or to provide similar benefits; or

(e)    a contractual or voluntary wage continuation plan, or payments made pursuant to such a plan, provided by an employer, or any other system intended to provide wages during a period of disability.

(2)    'Claimant' means a person who brings a personal injury action. If the action is brought through or on behalf of an estate, the term includes the claimant's decedent. If the action is brought through or on behalf of a minor, the term includes the claimant's parent or guardian.

(3)    'Damage' refers to economic losses paid or payable by collateral sources for wage loss, medical costs, rehabilitation costs, services, and other out-of-pocket costs incurred by or on behalf of a claimant for which the party is claiming recovery through a tort action.

Section 15-40-30.    (A)    In all tort actions, regardless of the theory of liability under which they are brought, the court shall allow the admission into evidence of proof of collateral source payments which have already been made or which are substantially certain to be made to the claimant as compensation for the same damages sought in the suit. Proof of these payments must be considered by the trier of fact in arriving at the amount of any award and must be considered by the court in reviewing awards made for excessiveness.

(B)    The trier of fact must be informed of the tax implications of all damage awards. The trier of fact may hear evidence of the premiums personally paid by the claimant to obtain any collateral source benefits paid or payable.

Section 15-40-40.    (A)    If liability is found in a tort action, regardless of the theory of liability, the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:

(1)    any past damages for:

(a)    medical and other costs of health care;

(b)    other economic loss; and

(c)    noneconomic loss; and

(2)    any future damages and the periods over which they will accrue, on an annual basis, for each of the following types of damages:

(a)    medical and other costs of health care;

(b)    other economic loss; and

(c)    noneconomic loss.

(B)    The calculation of all future medical care and other costs of health care and future noneconomic loss must reflect the costs and losses during the period of time the claimant will sustain those costs and losses. The calculation for other economic loss must be based on the losses during the period of time the claimant would have lived but for the injury upon which the claim is based."

SECTION    5.    Section 34-31-20(B) of the 1976 Code, as amended by Act 344 of 2000, is further amended read:

"(B)    All money decrees and judgments of courts enrolled or entered must draw interest according to law. The legal interest is at the rate of twelve six percent a year."

Part III

Limitations on Liability

SECTION    6.    Section 15-1-310 of the 1976 Code is amended to read:

"Section 15-1-310.    (A)    Any A person, who in good faith gratuitously renders emergency care at the scene of an accident or emergency to the victim thereof, shall is not be liable for any civil damages for any personal injury as a result of any an act or omission by such the person in rendering the emergency care or as a result of any an act or failure to act to provide or arrange for further medical treatment or care for the injured person, except acts or omissions amounting to gross negligence or wilful or wanton misconduct.

(B) A licensed health care provider, or allied health practitioner under the supervision of a licensed health care provider, who in good faith gratuitously renders medical care to a person without expectation of payment is not liable for civil damages for personal injury resulting from an act or omission by the person in rendering this care or resulting from an act or failure to act to provide or arrange for further medical treatment or care for the person, except an act or omission amounting to gross negligence or wilful or wanton misconduct.

(C)    A person may not recover in an action or claim brought pursuant to this section a sum exceeding the limitations on liability imposed in the South Carolina Tort Claims Act in Chapter 78 of Title 15. An action or claim brought pursuant to this section constitutes a complete bar to any recovery by the claimant, by reason of the same subject matter, against the person whose act or omission gave rise to the claim.

(D)    As used in this section:

(1)    'Allied health practitioner' means an person licensed or otherwise permitted by law to render medical care or perform delegated medical acts under the supervision of a licensed health care provider.

(2)    'Licensed Health Care Provider' means a physician, surgeon, nurse, oral surgeon, dentist, pharmacist and pharmacy, chiropractor, podiatrist, hospital, nursing home, optometrist, long term care administrator, home health care provider, or respiratory therapist, or a similar major category of licensed health care providers."

SECTION    7.    Chapter 1 of Title 15 is amended by adding:

"Section 15-1-315.    A healthcare provider is not liable to a patient or third party for injuries sustained as a result of the ingestion of a prescription drug or use of a medical device that was prescribed by the healthcare provider in accordance with instructions approved by the U.S. Food and Drug Administration regarding the dosage and administration of the drug, the indications for which the approved drug should be taken or the device should be used, and the contraindications against taking the drug or using the device."

SECTION    8.    Section 56-5-6540(E) of the 1976 Code, as last amended by Act 65 of 2001, is further amended to read:

"(E)    A violation of this article does not constitute negligence per se or contributory negligence, and is not admissible as evidence in a civil action, including the underlying facts regarding nonuse of safety belts and restraints, is admissible as evidence in any civil action to prove contributory or comparative negligence, negligence per se, assumption of the risk, product misuse, damages, or any other matter considers relevant and admissible under the governing rules of evidence."

Part IV

Notice and Opportunity to Cure Dwelling Defects

SECTION    9.    Title 15 of the 1976 Code is amended by adding:

"CHAPTER 47

Notice and Opportunity to Cure

Construction Dwelling Defects

Section 15-47-10.    This chapter may be cited as the 'South Carolina Notice and Opportunity to Cure Construction Dwelling Defects Act'.

Section 15-47-20.    As used in this chapter:

(1)    'Action' means any civil lawsuit or action or arbitration proceeding for damages or indemnity asserting a claim for injury or loss to a dwelling or personal property caused by an alleged defect arising out of or related to the design, construction, condition, or sale of the dwelling or a remodel of a dwelling.

(2)    'Association' means a homeowners' association organized and operated to provide for the acquisition, construction, management, and maintenance of real property

(3)    'Claimant' means a homeowner, including a subsequent purchaser, or association who asserts a claim against a contractor, subcontractor, supplier, or design professional concerning a defect in the design, construction, condition, or sale of a dwelling or in the remodel of a dwelling.

(4)    'Construction defect' means a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, or observation of construction or construction of residential improvements that results from any of the following:

(a)    defective material, products, or components used in the construction of residential improvements;

(b)    violation of the applicable codes in effect at the time of construction of residential improvements;

(c)    failure of the design of residential improvements to meet the applicable professional standards of care at the time of governmental approval of the design of residential improvements;

(d)    failure to construct residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction. 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.

(5)    'Contractor' means a person, firm, partnership, corporation, association, or other organization that is engaged in the business of designing, developing, construction or selling dwellings.

(6)    'Design professional' means:

(a)    a person licensed in this State as an architect, landscape architect, engineer, or surveyor;

(b)    an interior designer.

(7)    'Dwelling' means a single-family house or duplex or a multifamily unit designed for residential use in which title to each individual unit is transferred to the owner under a condominium or cooperative system and includes common areas and improvements that are owned or maintained by an association or by members of an association. A dwelling includes the systems and other components and improvements that are part of a single or multifamily unit at the time of construction.

(8)    'Service' means personal service or delivery by certified mail, return receipt requested, to the last known address of the addressee.

(9)    'Subcontractor' means a contractor who performs work on behalf of another contractor in the construction of a dwelling.

(10)    'Supplier' means a person who provides materials, equipment, or other supplies for the construction of dwelling.

Section 15-47-30.    If a claimant files a dwelling action without first complying with the provisions of this chapter, on motion of a party to the action, the court shall dismiss the action, without prejudice, and the action may not be refiled until the claimant has complied with the requirements of this chapter.

Section 15-47-40.    (A)    In an action brought against a contractor arising out of the construction of a dwelling, the claimant, no later than ninety days before filing the action shall serve written notice of claim on the contractor. The notice of claim must state that the claimant asserts a construction defect claim and the notice of claim must describe the claim or claims in reasonable detail sufficient to determine the general nature of any alleged construction defects and a description of the results of the defects, if known.

(B)    Within fifteen days after the initial service of the notice of claim required pursuant to subsection (A), the contractor shall forward a copy of the notice to each subcontractor, supplier, and design professional who the contractor reasonably believes is responsible for a defect specified in the notice and include with the notice the specific defect for which the contractor believes the subcontractor, supplier, or design professional is responsible.

(C)    On the request of the contractor, subcontractor, supplier, or design professional who has received a notice pursuant to subsection (A) or (B), the claimant shall provide to the contractor, subcontractor, supplier, or design professional any evidence that depicts the nature and cause of the defect and the nature and extent of repairs necessary to remedy the defect including, but not limited to, expert reports, photographs, and videotapes, if that evidence would be discoverable under state law or South Carolina rules of evidence.

(D)    Within thirty days after service of the notice of claim pursuant to subsection (A) or (B), each contractor, subcontractor, supplier, or design professional who has received a notice of claim shall serve a written response on the claimant by registered mail or personal service. The written response shall;

(1)    offer to compromise and settle the claim by monetary payment without inspection;

(2)    propose to inspect the dwelling that is the subject of the claim;

(3)    state that the contractor, subcontractor, supplier, or design professional disputes the claim and will neither remedy the alleged construction defect nor compromise and settle the claim.

(E)    If the contractor, subcontractor, supplier, or design professional disputes the claim pursuant to subsection (D) and will neither remedy the alleged construction defect nor compromise and settle the claim or does not respond to the claimant's notice of claim within the time stated in subsection (D), the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the notice of claim without further notice.

(F)    If the claimant rejects the settlement offer or the inspection proposal made by the contractor, subcontractor, supplier, or design professional pursuant to subsection (D), the claimant shall serve written notice of the claimant's rejection on the contractor, subcontractor, supplier, or design professional. The notice must include the basis for the claimant's rejection of the offer or proposal made by the contractor, subcontractor, supplier, or design professional.

(G)    After service of the rejection pursuant to subsection (F), the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim made pursuant to subsection (A) or (B) without further notice.

(H)    If the claimant elects to allow the contractor, subcontractor, supplier, or design professional to inspect the dwelling in accordance with the proposal made by the contractor, subcontractor, supplier, or design professional's proposal pursuant to subsection (D), the claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or other agents reasonable access to the claimant's residence during normal working hours to inspect the premises and the claimant defect to determine the nature and cause of the alleged defects and the nature and extent of any repairs or replacements necessary to remedy the alleged defects.

(I)    Within fourteen days following completion of the inspection, the contractor, subcontractor, supplier, or design professional shall serve on the claimant:

(1)    a written offer to:

(a)    remedy the construction defect at no cost to the claimant, including a report of the scope of the inspection, the findings and results of the inspection, a description of the additional construction necessary to remedy the defect described in the claim, and a timetable for the completion of the construction;

(b)    compromise and settle the claim by monetary payment; or

(2)    a written statement that the contractor, subcontractor, supplier, or design professional will not proceed further to remedy the defect.

(J)    If a claimant accepts the offer of a contractor, subcontractor, supplier, or design professional made pursuant to item (1) of subsection (I) and the contractor, subcontractor, supplier, or design professional does not proceed to remedy the construction defect within the agreed timetable or make the monetary payment, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim made pursuant to subsection (A) or (B) without further notice.

(K)    If a claimant receives a written statement that the contractor, subcontractor, supplier, or design professional will not proceed further to remedy the defect, as provided for in item (2) of subsection (J), the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim made pursuant to subsection (A) or (B) without further notice.

(L)    If the claimant rejects the offer made pursuant to item (1) of subsection (J) by the contractor, subcontractor, supplier, or design professional to remedy the construction defect or to compromise and settle the claim by monetary payment, the claimant shall serve written notice of the claimant's rejection on the contractor, subcontractor, supplier, or design professional. The notice must include the basis for the claimant's rejection of the offer of the contractor, subcontractor, supplier, or design professional. After service of the rejection, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim made pursuant to subsection (A) or (B) without further notice.

(M)    If a claimant unreasonably rejects an offer made as provided by this section or does not permit the contractor, subcontractor, supplier, or design professional a reasonable opportunity to repair the defect pursuant to an accepted offer of settlement, the claimant may not recover an amount in excess of:

(1)    the reasonable cost of the offered repairs which are necessary to cure the construction defect and which are the responsibility of the contractor, subcontractor, supplier, or design professional; or

(2)    the amount of the monetary settlement offered by the contractor, subcontractor, supplier, or design professional.

(N)    If a claimant accepts the offer made pursuant to item (1) of subsection (J) by the contractor, subcontractor, supplier, or design professional to remedy the construction defects, the claimant shall serve the contractor, subcontractor, supplier, or design professional with a written notice of acceptance within a reasonable period of time after receipt of the offer, but no later than thirty days after receipt of the offer.

(O)    If a claimant accepts the offer made pursuant to item (1) of subsection (J) by a contractor, subcontractor, supplier, or design professional to repair a defect, the claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or other agents reasonable access to the claimant's residence during normal working hours to perform and complete the construction by the timetable stated in the offer.

(P)    A claimant's failure to comply with any of the following is admissible in a dwelling action and creates a rebuttable presumption that the claimant's damages could have been mitigated:

(1)    allow a reasonable inspection requested by the contractor, subcontractor, supplier, or design professional;

(2)    provide a good faith, written response to a contractor, subcontractor, supplier, or design professional's offer.

(Q)    Absent good cause, the failure of a contractor, subcontractor, supplier, or design professional to respond, pursuant to subsection (D), in good faith to the claimant's initial notice of claim made pursuant to subsection (A) or (B) precludes the contractor, subcontractor, supplier, or design professional from asserting that the claimant did not comply with the provisions of this chapter.

(R)    A claimant's written notice made pursuant to subsection (A) tolls the applicable statute of limitations until ninety days after the contractor, subcontractor, supplier, or design professional receives the notice.

Section 15-47-50.    A construction defect which is discovered after a claimant has provided a contractor with the notice of claim pursuant to Section 15-47-40(A) may not be alleged until the claimant has given the contractor, subcontractor, supplier, or design professional who performed the original construction:

(1)    written notice of the alleged defect pursuant to Section 15-47-40; and

(2)    a reasonable opportunity to repair the alleged construction defect in the manner provided for in Section 15-47-40.

Section 15-47-60.    (A)    A contractor, subcontractor, supplier, or design professional who receives notice of a construction defect pursuant to Section 15-47-40 may present the notice to an insurer that issued a policy of insurance covering all or part of the conduct or business of the contractor, subcontractor, supplier, or design professional.

(B)    A notice provided to an insurer pursuant to subsection (A):

(1)    constitutes the making of a claim under the policy; and

(2)    requires the contractor, subcontractor, supplier, or design professional and the insurer to perform any obligations or duties required by the policy upon the making of a claim.

Section    15-47-70.    (A)    Upon entering into a contract for sale, construction, or substantial remodel of a dwelling, the contractor, subcontractor, supplier, or design professional shall provide notice to the owner of the dwelling of the right of the contractor, subcontractor, supplier, or design professional to offer to cure construction defects before a claimant may commence litigation against the contractor, subcontractor, supplier, or design professional. This notice must be conspicuous and may be included as part of the underlying contract.

(B)    The notice required by subsection (A) must be in substantially the following form.

'South Carolina law contains important requirements you must follow before you may file a lawsuit for an alleged defect arising out of or related to the design, construction or condition or sale of your home. Ninety days before you file your lawsuit, you must deliver to the contractor a written notice of any construction conditions you allege are defective and provide your contractor and any subcontractors, suppliers, or design professionals the opportunity to make an offer to repair or pay for the defects. You are not obligated to accept any offer made by the contractor or any subcontractors, suppliers, or design professionals. There are strict deadlines and procedures under state law, and failure to follow them may affect your ability to file a lawsuit.'

Section 15-47-80.    A contractor who constructs a new residential dwelling shall, within thirty days after the close of the sale, provide in writing to the initial purchaser of the residence:

(1)    the name, license number, business address, and telephone number of each subcontractor, supplier, and design professional who performed any work related to the design or construction of the dwelling;

(2)    a brief description of the work performed by each subcontractor, supplier, and design professional.

Section 15-47-90.    (A)    A person may not provide or offer to provide anything of monetary value to a property manager of an association or to a member or officer of an executive board to induce the property manager, member, or officer to encourage or discourage the association to file a claim for damages arising from a construction defect.

(B)    A property manager may not accept anything of value given to him in exchange for encouraging or discouraging the association that he manages to file a claim for damages arising from a construction defect.

(C)    A member or officer of an executive board may not accept anything of value given to him in exchange for encouraging or discouraging the association, of which he is a member or officer of the executive board, to file a claim for damages arising from a construction defect.

(D)    A person who wilfully violates subsection (A), (B), or (C) is guilty of a misdemeanor.

(E)    An association may bring an action to recover damages resulting from construction defects in any of the units, common elements, or limited common elements of the common-interest community only:

(1)    if the association first obtains the written approval of the owner of each unit whose unit or interest in the common elements or limited common elements will be the subject of the action or claim;

(2)    upon a vote of the owners of the units to which at least a majority of the votes of the members of the association are allocated; and

(3)    upon a vote of the executive board of the association.

(F)    If an action is brought by an association to recover damages resulting from construction defects in any of the units, common elements, or limited common elements of the common-interest community, the attorney representing the association shall provide the executive board of the association and the owner of each unit a statement that includes, in reasonable detail:

(1)    the defects and damages or injuries to the units, common elements, or limited common elements;

(2)    the cause of the defects, if the cause is known;

(3)    the nature and the extent that is known of the damage or injury resulting from the defects;

(4)    the location of each defect within the units, common elements, or limited common elements, if known;

(5)    a reasonable estimate of the cost of the action or mediation, including reasonable attorney's fees;

(6)    an explanation of the potential benefits of the action or mediation and the potential adverse consequences if the association does not commence the action or submit the claim to mediation or if the outcome is not favorable to the association; and

(7)    all disclosures that a unit owner is required to make upon the sale of the property.

(G)    An association or an attorney for an association may not employ a person to perform destructive tests to determine any damage or injury to a unit, common element, or limited common element caused by a construction defect unless the:

(1)    person is licensed as a contractor pursuant to state law;

(2)    association has obtained the prior written approval of the owner of each unit whose unit or interest in the common element or limited common element will be affected by the testing;

(3)    person performing the tests has provided a written schedule for repairs;

(4)    person performing the tests is required to repair all damage resulting from the tests in accordance with state law and local ordinances; and

(5)    association or the person employed to perform the tests obtains all permits required to conduct the tests and to repair any damage resulting from the tests.

(H)    An association may commence an action only upon a vote or written agreement of the owners of the units to which at least a majority of the votes of the members of the association are allocated. In such a case, the association shall provide the owner of each unit written notice of the meeting at which the commencement of an action is to be considered or action is to be taken within twenty-one calendar days before the meeting.

(I)    The executive board of an association may, without giving notice to the owner of each unit, employ a contractor and other persons necessary to make repairs to a unit or common element within the common-interest community as are required to protect the health, safety, and welfare of the owners of the units.

Section 15-47-100.    Nothing in this chapter applies to actions arising out of claims for personal injury or death, or both."

Part V

Tort Claims Act Revisions

SECTION    10.    Section 15-78-20 of the 1976 Code, as last amended by Act 352 of 1988 is further amended to read:

"Section 15-78-20.    (a)    The General Assembly finds that while a private entrepreneur may be readily held liable for negligence of his employees within the chosen ambit of his activity, the area within which government has the power to act for the public good has been without limit and, therefore, government did not have the duty to do everything which might have been done. The General Assembly further finds that each governmental entity has financial limitations within which it must exercise authorized power and discretion in determining the extent and nature of its activities. Thus, while total immunity from liability on the part of the government is not desirable, see McCall v. Batson, neither should the government be subject to unlimited nor unqualified liability for its actions. The General Assembly recognizes the potential problems and hardships each governmental entity may face being subjected to unlimited and unqualified liability for its actions. Additionally, the General Assembly recognizes the impossibility of insuring for acts retrospectively. The General Assembly seeks an orderly transition to the recognition of individuals' rights against the tortious sovereign as defined herein. Consequently, it is declared to be the public policy of the State of South Carolina that the State, and its political subdivisions, are only liable for torts within the limitations of this chapter and in accordance with the principles established herein. It is further declared to be the public policy of the State of South Carolina that to insure an orderly transition from sovereign immunity to qualified and limited liability that the General Assembly intends to provide for liability on the part of the State and its political subdivisions only from July 1, 1986, forward in prospective fashion. No governmental entity which was not insured at the time of the injury for which compensation is sought is liable under this chapter and those which were insured are liable only to the extent provided herein. Liability for acts or omissions under this chapter is based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty.

(b)    The General Assembly in this chapter intends to grant the State, its political subdivisions, and employees, while acting within the scope of official duty, immunity from liability and suit for any tort except as waived by this chapter. The General Assembly additionally intends to provide for liability on the part of the State, its political subdivisions, and employees, while acting within the scope of official duty, only to the extent provided herein. All other immunities applicable to a governmental entity, its employees, and agents are expressly preserved. The remedy provided by this chapter is the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents except as provided in Section 15-78-70(b).

(c)(i)    As to those causes of action that arise or accrue prior to the effective date of this act, the General Assembly reinstates sovereign immunity on the part of the State, its political subdivisions and employees, while acting within the scope of official duty provided that sovereign immunity will not bar recovery in any cause of action arising or accruing on or before the effective date of this act if the defendant maintained liability insurance coverage.

(ii)    In such cases involving governmental health care facilities, as defined in Section 15-78-30(j), recovery shall not exceed the limits of the liability insurance coverage up to a maximum recovery of five hundred thousand dollars.

(iii)    In all other such cases recovery shall not exceed the limits of the liability insurance coverage.

(d)    Nothing in this chapter affects liability based on contract nor does it affect the power of the State or its political subdivisions to contract.

(e)    Nothing in this chapter is construed as a waiver of the state's or political subdivision's immunity from suit in federal court under the Eleventh Amendment to the Constitution of the United States nor as consent to be sued in any state court beyond the boundaries of the State of South Carolina.

(f)    The provisions of this chapter establishing limitations on and exemptions to the liability of the State, its political subdivisions, and employees, while acting within the scope of official duty, must be liberally construed in favor of limiting the liability of the State.

(g)    The General Assembly recognizes the competing interests of either providing physicians and dentists qualified immunity under the provisions of the South Carolina Tort Claims Act or continuing unqualified liability for medical malpractice actions brought against governmentally employed physicians or dentists. While patients deserve accountable and competent health care, regardless of the public or private character of the provider, governmental entities, in order to attract qualified physicians and dentists, must be able to offer an affordable compensation and employment package, including liability insurance. The General Assembly, in amending this chapter, intends to provide an orderly transition from noninclusion to inclusion of physicians and dentists under the provisions of this chapter. Additionally, the liability limits, and hence mandated insurance coverage, of governmental entities for acts of physicians or dentists, acting within the scope of their profession, are set somewhat higher than those provided for other types of governmental liability. These higher limits and mandated coverages are recognition by the General Assembly of significantly higher damages in cases of medical malpractice. To this end, inclusion of physicians and dentists within this chapter has been delayed until January 1, 1989, when an affordable program of group liability insurance will be instituted."

SECTION 11.    Section 15-78-30(c) of the 1976 Code, as last amended by Act 271 of 1996, is further amended to read:

"(c)    Prior to January 1, 1989, 'employee' means any officer, employee, or agent of the State or its political subdivisions, including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of a governmental entity in the scope of official duty, whether with or without compensation, but the term does not include an independent contractor doing business with the State or any political subdivision of the State. Custody of prisoners by the State or any of its political subdivisions does not in and of itself create an employer and employee relationship between the State and the prisoner. Provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession.

On or after January 1, 1989, 'employee' means any officer, employee, or agent of the State or its political subdivisions, including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of a governmental entity in the scope of official duty including, but not limited to, technical experts whether with or without compensation, licensed health care provider, as defined in Section 15-1-310(D), rendering care under Medicaid and other publicly funded health care programs, but the term does not include an independent contractor doing business with the State or any political subdivision of the State. Custody of prisoners by the State or any of its political subdivisions does not in and of itself create an employer and employee relationship between the State and the prisoner. Provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than the salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer whether or not the practice plan is incorporated and registered with the Secretary of State."

SECTION    12.    Section 15-78-30(i) of the 1976 Code, as amended by Act 352 of 1988, is further amended to read:

"(i)    'Scope of official duty' or 'scope of state employment' means:

(1) acting in and about the official business of a governmental entity and;

(2) performing official duties; and

(3) the diagnosis and treatment of patients by licensed health care providers under Medicaid and other publicly funded health care and medical treatment programs."

SECTION    13.    Section 15-78-30 of the 1976 Code, as last amended by Act 271 of 1996, is further amended by adding at the end:

"(k)    'Discretionary act' means an act which requires the exercise of reason in the adaptation of means to an end, or the exercise of judgment in determining how or what action must be done or taken or the course pursued by a public official or public employee in the performance of his duties. These duties are not limited to planning function, but extend to any decision where choice is available."

SECTION    14.    Section 15-78-70(c) of the 1976 Code, as last amended by Act 380 of 1994, is further amended to read:

"(c)    Prior to January 1, 1989, a person, when bringing an action against a governmental entity under the provisions of this chapter, shall name as a party defendant only the agency or political subdivision for which the employee was acting and is not required to name the employee individually, unless the agency or political subdivision for which the employee was acting cannot be determined at the time the action is instituted. In the event that the employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as the party defendant. The provisions of this section may in no way limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession.

On or after January 1, 1989, a person, when bringing an action against a governmental entity under the provisions of this chapter, shall name as a party defendant only the agency or political subdivision for which the employee was acting and is not required to name the employee individually, unless the agency or political subdivision for which the employee was acting cannot be determined at the time the action is instituted. In the event that the employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as the party defendant. The provisions of this section in no way shall limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than the salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer whether or not the practice plan is incorporated and registered with the Secretary of State."

SECTION    15.    Section 15-78-120(a) of the 1976 Code, as last amended by Section 55D, Part II, Act 155 of 1997, is further amended to read:

"(a)    For any action or claim for damages brought under the provisions of this chapter, the liability shall not exceed the following limits:

(1)    Except as provided in Section 15-78-120(a)(3), No A person shall may not recover in any action or claim brought hereunder pursuant to this chapter a sum exceeding three hundred thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.

(2)    Except as provided in Section 15-78-120(a)(4), The total sum recovered hereunder pursuant to this chapter arising out of a single occurrence shall not exceed six hundred thousand dollars regardless of the number of agencies or political subdivisions or claims or actions involved.

(3)    No person may recover in any action or claim brought hereunder against any governmental entity and caused by the tort of any licensed physician or dentist, employed by a governmental entity and acting within the scope of his profession, a sum exceeding one million two hundred thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.

(4)    The total sum recovered hereunder arising out of a single occurrence of liability of any governmental entity for any tort caused by any licensed physician or dentist, employed by a governmental entity and acting within the scope of his profession, may not exceed one million two hundred thousand dollars regardless of the number of agencies or political subdivisions or claims or actions involved.

(5)    The provisions of Section 15-78-120(a)(3) and (a)(4) shall in no way limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than the salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer whether or not the practice plan is incorporated and registered with the Secretary of State."

SECTION    16.    Chapter 78, Title 15 of the 1976 Code is amended by adding:

"Section 15-78-55.    Each exception enumerated in Section 15-78-60 as an exception to waiver of immunity applies separately and independently from any other exception, regardless of the number of exceptions which may be applicable. Each exception to waiver of immunity provided for in Section 15-78-60 renders the governmental entity immune and not liable for a loss in order to limit liability on behalf of the government and taxpayers. Qualifying language included in an exception contained in Section 15-78-60 must not be construed or applied to limit the application of any other exception."

SECTION    17.    Section 15-78-100 of the 1976 Code, as amended by Act 352 of 1988, is further amended by adding at the end:

"(d)    A governmental entity that is a defendant in an action brought pursuant to this chapter may implead a person or entity, not yet a party to the action, who may be liable in whole or part for the loss to the plaintiff."

Part VI

Statute of Limitations

SECTION    18.    Section 15-3-640 of the 1976 Code is amended to read:

"Section 15-3-640.    No actions to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may be brought more than thirteen six 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:

(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 current or prior owner of the real property or improvement, or against any other person having a current or prior interest in the real property or improvement;

(9)    an action against owners or manufacturers of components, or against any person furnishing materials, or against any 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.

This section describes an outside limitation of thirteen six years after the substantial completion of the improvement, within which normal statutes of limitations continue to run.

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 six years after substantial completion of the improvement. The Department of Consumer Affairs shall publish in conspicuous places the right of any 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 a 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 six years after substantial completion of the improvement or component."

SECTION    19.    Chapter 3, Title 15 of the 1976 Code is amended by adding:

"Section 15-3-645.    An action for the recovery of damages for personal injury, death, or damage to property based upon or arising out of any alleged defect or a failure in relation to a product, whether based on negligence, strict liability, warranty or some other theory of recovery, may not be brought more than ten years after the date of the initial product for use or consumption."

Part VII

Several Liability

SECTION    20.    Title 15 of the 1976 Code is amended by adding:

"CHAPTER 41

Several Liability

"Section 15-41-10.    As used in this section have the meaning set forth below, unless the context clearly requires otherwise:

(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, any other 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. It 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 or persons, 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 which results from an act or omission committed with a specific wrongful intent.

(3)    'Person' means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including a governmental entity or unincorporated association of persons.

Section 15-41-20.    In an action for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and must 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 15-41-30.    (A)    In assessing percentages of fault, the trier of fact shall consider the fault of all persons who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice within one hundred twenty days of the date of the trial that a nonparty was wholly or partially at fault. The notice must be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last-known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(B)    Nothing in this section is meant to eliminate or diminish a defense or immunity which currently exists, except as expressly noted. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of named parties. Where fault is assessed against nonparties, findings of this fault does not subject a nonparty to liability in this or any other action or to be introduced as evidence of liability in an action.

Section 15-41-40.    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. A person held jointly liable under 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 under this section.

Section 15-41-50.    The burden of alleging and proving fault is upon the person who seeks to establish fault.

Section 15-41-60.    This sections must not be construed to create a cause of action or to alter the immunity of an person."

Part VIII

Procedural Provisions

SECTION    21.    Chapter 36, Title 15 of the 1976 Code is amended to read:

"CHAPTER 36

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.

Section 15-36-10.    (A)(1)    Every document 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. Every 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 party's address and telephone number.

(2)    The signature of an attorney or a party constitutes a certificate to the court that the person:

(a)    has read the document;

(b)    that to the best of his knowledge, information and belief there is good ground to support it; and

(c)    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 upon which the proceedings are based.

(3)    A participant to a civil or administrative action may be sanctioned for filing a frivolous pleading, motion, or document and for making frivolous arguments. Sanctions may be imposed upon a participant to a civil or administrative action for filing a pleading, motion, or other document in bad faith whether or not there is good ground to support it.

(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. If a document is signed in violation of this section, the court, upon its own motion or the motion of a party or, or by petition in collateral proceedings, may impose an appropriate sanction upon the person who signed it.

(2)    Sanctions may include:

(a)    an order to pay the reasonable costs and attorney's fees incurred by the party or parties defending against a frivolous action or an action brought in bad faith;

(b)    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.

If appropriate under the facts of the case, the court may order payment of a reasonable monetary penalty to the party or parties defending against a frivolous action or document or action brought in bad faith.

(C)    A person is entitled to notice and an opportunity to respond prior to the imposition of sanctions under this section. A court imposing sanctions under this section shall describe in its order the conduct determined to constitute a violation of this section, explain the basis for the sanction imposed, and enter judgment accordingly.

(D)    The provisions of this section apply in addition to all other remedies available at law or in equity."

SECTION    22.    Section 15-7-30 of the 1976 Code is amended to read:

"Section 15-7-30.    (A)    In all other cases not provided for in Section 15-7-10 or 15-7-20, the action shall must be tried in the county in which the defendant resides at the time of the commencement of the action. 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 the action resides at the time of the commencement of the action. If none of the parties shall reside in the State, the action may be tried in any county which the plaintiff shall designate designates 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.

(B)    A civil action tried pursuant to this section against a resident individual defendant must be brought and tried where the defendant is domiciled or resides.

(C)    A civil action tried pursuant to this section against a nonresident individual must be brought in one of the following counties:

(1)    the county where the cause of action arose; or

(2)    if the cause of action did not arise in this State, the county where the plaintiff resides.

(D)    A civil action tried pursuant to this section against a domestic corporation must be brought and tried in one of the followings:

(1)    the county of the corporation's principal place of business; or

(2)    the county where the cause of action arose.

(E)    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 one of the following counties

(1)    the county where the foreign corporation has its principal place of business, if the principal place of business is in this State;

(2)    the county where the cause of action arose; or

(3)    if neither (1) nor (2) apply where the plaintiff resides.

(F)    For purposes of this section:

(1)    'Domestic Corporation' means a corporation incorporated under the laws of this State;

(2)    'Foreign corporation' means a 'foreign corporation' as defined in Section 33-1-400;

(3)    'Foreign limited partnership' means a 'foreign limited partnership' as defined in Section 33-42-20;

(4)    'Foreign limited liability company' means a 'foreign limited liability partnership' as provided for in Section 33-41-1150.

(5)    Foreign limited liability partnership means a 'foreign limited liability partnership' as defined in Section 33-41-1150;

(6)    'Non resident individual' means a person who is not domiciled in this State;

(7)    'Principal place of business' means the location of the corporation's corporate headquarters;

(8)    'Resident individual' means a person who is domiciled in this State."

Part IX

Repeals

SECTION    23.    Sections 15-33-135, 44-7-50, and 58-23-90 and Chapter 38, Title 15 of the 1976 Code are repealed.

Part X

Severability

SECTION    24.    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.

Time Effective

SECTION    25.    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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This web page was last updated on Friday, December 4, 2009 at 3:23 P.M.