A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 15-51-10, RELATING TO CIVIL ACTIONS FOR A WRONGFUL ACT CAUSING DEATH, SO AS TO PROVIDE THAT A WRONGFUL DEATH ACTION CAN BE MAINTAINED FOR AN UNBORN CHILD AT ANY STAGE OF DEVELOPMENT AND TO PROVIDE THAT A VIOLATION OF ARTICLE 6, CHAPTER 41, TITLE 44 IS PRIMA FACIE EVIDENCE ENTITLING A PARENT TO MAINTAIN A WRONGFUL DEATH ACTION ON BEHALF OF THEIR DECEASED UNBORN CHILD; BY AMENDING SECTION 15-51-20, RELATING TO THE BENEFICIARIES OF ACTION FOR WRONGFUL DEATH AND WHO MAY BRING AN ACTION, SO AS TO PROVIDE THAT THE MOTHER, FATHER, OR BOTH THE MOTHER AND FATHER MAY BRING A WRONGFUL DEATH ACTION FOR A DECEASED UNBORN CHILD AND THE FATHER AND MOTHER SHALL BE THE ONLY BENEFICIARIES; AND BY AMENDING SECTION 15-51-42, RELATING TO THE APPROVAL OF SETTLEMENTS OF WRONGFUL DEATH OR SURVIVAL ACTIONS, SO AS TO PROVIDE THAT THE PARENT INITIATING THE WRONGFUL DEATH ACTION IS AUTHORIZED TO SETTLE THE ACTION.

 

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

 

SECTION 1.  Section 15-51-10 of the S.C. Code is amended to read:

 

    Section 15-51-10.  (A) Whenever the death of a person, including an unborn child at any stage of development, shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony.  In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.

    (B) An abortion performed or induced in violation of Article 6, Chapter 41, Title 44 is prima facie evidence entitling a parent to initiate an action pursuant to subsection (A).

 

SECTION 2.  Section 15-51-20 of the S.C. Code is amended to read:

 

    Section 15-51-20.  (A) Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused.  Every such action shall be brought by or in the name of the executor or administrator of such person.

    (B) Notwithstanding the provisions contained in subsection (A), every such action shall be for the benefit of the mother or father of an unborn child at any stage of development whose death shall have been so caused. Every such action shall be brought on behalf of the unborn child by his mother, father, or both the mother and father.

 

SECTION 3.  Section 15-51-42 of the S.C. Code is amended to read:

 

    Section 15-51-42.  (A) Only a duly appointed personal representative, as defined in Section 62-1-201(30), shall have the authority to settle wrongful death or survival actions. In the case of an action for the wrongful death of an unborn child, the parent initiating the action has the authority to settle.

    (B)(1) If no action is pending, then the personal representative, or a parent in the case of an action for the wrongful death of an unborn child at any stage of development, shall petition either the probate or the circuit court of this State seeking approval of a proposed settlement.  The petition must be verified by the personal representative, or parent in the case of an action for the wrongful death of an unborn child at any stage of development, and shall set forth, in terms satisfactory to the court in which the petition is filed, the basic facts surrounding the death of the decedent, the pertinent facts surrounding the liability of the alleged wrongdoer, the amount of insurance available to pay for damages, the terms of the proposed settlement, the statutory beneficiaries of the wrongful death or survival action, the heirs at law or appropriate devisees of the estate, the appropriate creditors, the amount of their claims, and, if the personal representative, or parent in the case of an action for the wrongful death of an unborn child at any stage of development, has retained legal counsel, then the terms and provisions of the agreement with respect to attorney's fees and costs.

        (2) It is not necessary that a personal representative, or parent in the case of an action for the wrongful death of an unborn child at any stage of development, be represented by legal counsel for the court to consider the petition and approve the settlement.  If the personal representative or parent is represented by legal counsel, then the counsel shall sign a certificate attesting to the fact that he is of the opinion that the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent.

        (3) The court shall schedule a hearing and receive into evidence those facts that the court considers necessary and proper to evaluate the settlement.  After conducting this inquiry, the court shall issue its order either approving or disapproving the proposed settlement.  If the settlement is approved by the court, then the personal representative, or parent in the case of an action for the wrongful death of an unborn child at any stage of development, has the power to conclude the settlement, including the execution of those documents as the settlement terms contemplate.

    (C) If a wrongful death or survival action has been filed in state court and:

       (1) the settlement agreement between the parties is reached before the matters reach trial, then the personal representative, or parent in the case of an action for the wrongful death of an unborn child at any stage of development, shall petition the court in which the wrongful death or survival action has been filed and follow the procedure for settlement as provided in (B) above;

       (2) the settlement agreement is reached during the trial, or after trial but before notice of appeal is filed, of either the wrongful death or survival action, then no petition is necessary, and the court shall conduct a hearing, at which the parties may present to the court the pertinent facts and information, including that information required in subsection (B) above, which the court may require in order to consider whether to approve or disapprove the settlement.  If the court finds the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent, then the court shall issue its order approving the settlement;

       (3) the settlement agreement is reached after notice of appeal is filed, then the personal representative, or parent in the case of an action for the wrongful death of an unborn child at any stage of development, shall petition the appellate court before which the matter is pending to remand the case to the circuit court for consideration of the settlement agreement in accordance with the procedure outlined in subitem (2) above.

    (D) For any actions pending in the federal courts, the same procedure may be followed, but the federal court, at its discretion, may issue an order transferring the case to state court for consideration of the proposed settlement.

    (E) Once a settlement agreement has been approved by an appropriate court, the person paying the settlement proceeds and all those on whose behalf the payment is made and any other persons who could be responsible because of the actions on whose behalf the settlement proceeds are being paid, are relieved and discharged from further liability and shall have no obligation or legal duty to see to the appropriate or proper distribution of the settlement proceeds among either the wrongful-death beneficiaries or those entitled to the proceeds of the settlement of the survival action.  Once payment has been made to the personal representative, or parent in the case of an action for the wrongful death of an unborn child at any stage of development, the obligations of the person making the payment and those on whose behalf the payment is being made, and all those who could be responsible for the actions of these persons, are fully and completely released and finally and forever discharged from any further responsibility in connection with the action or actions.

    (F) Any person bringing a wrongful death or survival action in a court other than the probate court must notify the probate court of this action within ten days after the filing of the action.  The provisions of this subsection apply to wrongful death or survival actions filed after the effective date of this section.

    (G) When the administration of an estate is final except for the administration of survival action proceeds because of the pendency of a survival action brought on behalf of the estate, the probate court may issue, upon petition by the personal representative, a special order providing that no accountings are required until the survival action is settled or verdict rendered in a trial. The attorney for the personal representative must notify the probate court immediately upon completion of the survival action and furnish the court with a copy of the order approving settlement or a copy of the judgment, whichever is appropriate.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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