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S. 37
STATUS INFORMATION
General Bill
Sponsors: Senator Richardson
Document Path: l:\s-res\shr\005friv.kmm.doc
Introduced in the Senate on January 11, 2005
Currently residing in the Senate Committee on Judiciary
Summary: Frivolous Law Suits
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-99 1/11/2005 Senate Referred to Committee on Judiciary SJ-99
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 15-36-10 OF THE 1976 CODE, RELATING TO LIABILITY FOR ATTORNEY'S FEES AND COSTS OF FRIVOLOUS SUITS, TO REQUIRE THE SIGNATURE OF AN ATTORNEY OR PRO SE LITIGANT ON ALL PLEADINGS AND OTHER DOCUMENTS FILED IN A CIVIL OR ADMINISTRATIVE ACTION, TO PROVIDE THAT THE SIGNATURE CONSTITUTES CERTIFICATION THAT THE ACTION IS NOT FRIVOLOUS OR INTERPOSED FOR DELAY, AND TO PROVIDE FOR SANCTIONS; TO AMEND CHAPTER 36, TITLE 15 BY ADDING SECTION 15-36-100, TO PROVIDE THAT IN ALL ACTIONS ALLEGING PROFESSIONAL NEGLIGENCE, THE PLAINTIFF MUST FILE AN AFFIDAVIT THAT MUST SPECIFY AT LEAST ONE NEGLIGENT ACT OR OMISSION CLAIMED TO EXIST AND THE FACTUAL BASIS FOR EACH CLAIM; AND TO REPEAL SECTIONS 15-36-20, 15-36-30, 15-36-40, AND15-36-50.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 15-36-10 of the 1976 Code is amended to read:
"Section 15-36-10. (A)(1) Any person who takes part in the procurement, initiation, continuation, or defense of any civil proceeding is subject to being assessed for payment of all or a portion of the attorney's fees and court costs of the other party if:
(1) he does so primarily for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claim upon which the proceedings are based; and
(2) the proceedings have terminated in favor of the person seeking an assessment of the fees and costs.
As used in this chapter, "person" is defined to mean any individual, corporation, company, association, firm, partnership, society, joint stock company, and any other entity, including any governmental entity or unincorporated association of persons. A pleading filed in a civil or administrative action on behalf of a party who is represented by an attorney must be signed by at least one attorney of record who is an active member of the South Carolina Bar or who is admitted to practice in the courts of this State and must include the address and telephone number of the attorney signing the document.
(2) A document filed in a civil or administrative action by a party who is not represented by an attorney must be signed by the party and must include the address and telephone number of the party.
(3) The signature of an attorney or a pro se litigant constitutes a certificate to the court that:
(a) the person has read the document;
(b) a reasonable attorney in the same circumstances would believe that under the facts his claim or defense may be warranted under the existing law or, if his claim or defense is not warranted under the existing law, a good faith argument exists for the extension, modification, or reversal of existing law;
(c) a reasonable attorney in the same circumstances would believe that his procurement, initiation, continuation, or defense of a civil cause is not intended to harass or injure the other party; and
(d) a reasonable attorney in the same circumstances would believe his claim or defense is not frivolous, interposed for delay, or brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based.
(4) An attorney or pro se litigant participating in a civil or administrative action or defense may be sanctioned for:
(a) filing a frivolous pleading, motion, or document if:
(i) the person has not read the frivolous pleading, motion, or document;
(ii) a reasonable attorney in the same circumstances would believe that under the facts, his claim or defense was clearly not warranted under existing law and that a good faith or reasonable argument did not exist for the extension, modification, or reversal of existing law;
(iii) a reasonable attorney presented with the same circumstances would believe that the procurement, initiation, continuation, or defense of a civil cause was intended merely to harass or injure the other party; or
(iv) a reasonable attorney presented with the same circumstances would believe the pleading, motion, or document is frivolous, interposed for merely delay, or merely brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based.
(b) making frivolous arguments a reasonable attorney would believe were not reasonably supported by the facts; or
(c) making frivolous arguments that a reasonable attorney would believe were not warranted under the existing law or if there is no good faith argument that exists for the extension, modification, or reversal of existing law.
(B)(1) If a document is not signed or does not otherwise comply with this section, it must be stricken unless it is signed promptly or amended to comply with this section after the omission is called to the attention of the attorney or the party.
(2) If a document is signed in violation of this section, or an attorney or pro se litigant has violated subsection (A)(4), the court, upon its own motion or motion of a party, may impose an appropriate sanction upon the person in violation.
(C)(1) At the conclusion of a trial and after a verdict for or a verdict against damages has been rendered or a case has been dismissed by a directed verdict, summary judgment, or judgment notwithstanding the verdict, upon motion of the prevailing party, the court shall proceed to determine if the claim or defense was frivolous. An attorney, party, or pro se litigant shall not be sanctioned for a frivolous claim or defense unless the court finds the attorney, party, or pro se litigant violated one of the following conditions:
(a) a reasonable attorney in the same circumstances would believe that under the facts, his claim or defense was clearly not warranted under existing law and that a good faith or reasonable argument did not exist for the extension, modification, or reversal of existing law;
(b) a reasonable attorney in the same circumstances would believe that his procurement, initiation, continuation, or defense of the civil suit was intended merely to harass or injure the other party; or
(c) a reasonable attorney in the same circumstances would believe that the case or defense was frivolous as not reasonably founded in fact or was interposed merely for delay, or was merely brought for a purpose other than securing proper discovery, joinder of proposed parties, or adjudication of the claim or defense upon which the proceedings are based.
(2) Unless the court finds by a preponderance of the evidence that an attorney, party, or pro se litigant engaged in advancing a frivolous claim or defense, the attorney, party, or pro se litigant shall not be sanctioned.
(D) A person is entitled to notice and an opportunity to respond before the imposition of sanctions pursuant to the provisions of this section. A court or party proposing a sanction pursuant to this section shall notify the court and all parties of the conduct constituting a violation of the provisions of this section and explain the basis for the potential sanction imposed. Upon notification, the attorney, party, or pro se litigant who allegedly violated subsection (A)(4) has thirty days to respond to the allegations as that person considers appropriate, including, but not limited to, by filing a motion to withdraw the pleading, motion, document, or argument or by offering an explanation of mitigation.
(E) In determining if an attorney, party, or a pro se litigant has violated the provisions of this section, the court shall take into account:
(1) the number of parties;
(2) the complexity of the claims and defenses;
(3) the length of time available to the attorney, party, or pro se litigant to investigate and conduct discovery for alleged violations of the provisions of subsection (A)(4);
(4) information disclosed or undisclosed to the attorney, party, or pro se litigant through discovery and adequate investigation;
(5) previous violations of the provisions of this section;
(6) the response, if any, of the attorney, party, or pro se litigant to the allegation that he violated the provisions of this section; and
(7) other factors the court considers just, equitable, or appropriate under the circumstances.
(F) In determining whether sanctions are appropriate or the severity of a sanction, the court shall consider previous violations of the provisions of this section.
(G) Sanctions may include:
(1) an order for the party represented by an attorney or pro se litigant to pay the reasonable costs and attorney's fees of the prevailing party under a motion pursuant to this section;
(2) an order for the attorney to pay a reasonable fine to the court; or
(3) a directive of a nonmonetary nature, including injunctive relief, designed to deter a future frivolous action or an action in bad faith.
(H) This act shall not alter the South Carolina Rules of Civil Procedure or the South Carolina Appellate Court Rules.
(I) The provisions of this section apply in addition to all other remedies available at law or in equity.
(J) The amount requested for damages in a pleading may not be considered in a determination of a violation of the provisions of this section."
SECTION 2. Chapter 36, Title 15 of the 1976 Code is amended by adding:
"Section 15-36-100. (A) As used in this section, 'expert witness' means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:
(1) is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and
(2)(a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or
(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(i) the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion;
(ii) the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion; or
(iii) any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion.
(3) is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge which may assist the tryer of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual's study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert's credentials and why the expert is qualified to conduct the review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert's credentials pursuant to subsection (E).
(B) In an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.
(C)(1) The contemporaneous filing requirement of subsection (B) does not apply to any case in which the period of limitation will expire, or there is a good faith basis to believe it will expire on a claim stated in the complaint, within ten days of the date of filing and, because of the time constraints, the plaintiff alleges that an affidavit of an expert could not be prepared. In such a case, the plaintiff has forty-five days after the filing of the complaint to supplement the pleadings with the affidavit. Upon motion, the trial court, after hearing and for good cause, may extend the time as the court determines justice requires. If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim. The filing of a motion to dismiss pursuant to this section, shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), S.C. Rules of Civil Procedure.
(2) The contemporaneous filing requirement of subsection (B) is not required to support a pleaded specification of negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.
(D) This section does not extend an applicable period of limitation, except that if the affidavit is filed within the period specified in this section, the filing of the affidavit after the expiration of the statute of limitations is considered timely and provides no basis for a statute of limitations defense.
(E) If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed contemporaneously with its initial responsive pleading, that the affidavit is defective, the plaintiff's complaint is subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment within thirty days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing an amendment or response to the motion, or both, as the trial court determines justice requires. The filing of a motion to dismiss pursuant to this section shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), S.C. Rules of Civil Procedure.
(F) If a plaintiff fails to file an affidavit as required by this section, and the defendant raises the failure to file an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, the complaint is not subject to renewal after the expiration of the applicable period of limitation unless a court determines that the plaintiff had the requisite affidavit within the time required pursuant to this section and the failure to file the affidavit is the result of a mistake. The filing of a motion to dismiss pursuant to this section shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), S.C. Rules of Civil Procedure.
(G) This section applies to the following professions:
(1) architects;
(2) attorneys at law;
(3) certified public accountants;
(4) chiropractors;
(5) dentists;
(6) land surveyors;
(7) medical doctors;
(8) marriage and family therapists;
(9) nurses;
(10) occupational therapists;
(11) optometrists;
(12) osteopathic physicians;
(13) pharmacists;
(14) physical therapists;
(15) physicians' assistants;
(16) professional counselors;
(17) professional engineers;
(18) podiatrists;
(19) psychologists;
(20) radiological technicians;
(21) respiratory therapists; and
(22) veterinarians."
SECTION 3. Sections 15-36-20, 15-36-30, 15-36-40, and 15-36-50 of the 1976 Code are repealed.
SECTION 4. This act takes effect July 1, 2005.
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