HomeMy WebLinkAboutNB 6 TORT REFORM 03-18-85 NEW BUSINESS
ENDA,
· March 12, 1985 CO~
TO:
FROM:
SU BJ ECT:
Honorable Mayor and City Council
Royleen A. White, Director of Community and Administrative Serv
TORT REFORM/SENATE BILL 75
RECOMMENDATIONS:
1. To support Senate Bill 75, and to authorize staff to take necessary action
to lobby for its passage.
2. To authorize staff to support any tort reform bills which the League of
California Cities recommends.
BACKGROUND:
Senate Bill 75 (Foran) is similar to last year's Senate Bill 575, in that it
eliminates joint liability for damages awarded to a plaintiff to cover losses
that are not out-of-pocket, such as pain and suffering. It provides, however,
that a defendant, no matter how small his or her negligence, remains liable
for all of a person's out-of-pocket losses. So, for example, if a City is
10% responsible for an accident, and the defendant 90% responsible is unable
to pay any of the damages, the City must pay the plaintiff 100% of his or
her out-of-pocket losses. However, for the non-out-of-pocket losses, the
City would be responsible only for its percentage share of losses: 10% (The
League has co-sponsored this limit on joint liability for many years.)
A high priority of the League of California Cities this session is reform of
California's tort liability laws. The need for reform is growing in importance
because insurance premiums are increasing dramatically as cities renew their
insurance, and because city coverage is being cancelled mid-year. Insurance
carriers are increasing premiums to cover the cost of "deep pocket" claims.
Typically, the charge for new insurance is three to four times the previous
charge, and each City's self-insured retention is doubled or tripled.
Council may recall that, as a member of a Joint Powers Authority, the City of
Tustin's liability insurance was cancelled last December. Our fiscal-year
premium for 1984/85 was $13,500, while our current premium is $72,000!!
The percentage of the general-fund budget for premiums in fiscal year 1984/85
was .14%, and the current percentage is .65%. Obviously, something must be
done to solve this problem.
Because of this crisis in insurance availablity, many bills are being intro-
duced this year. Staff requests the flexibility to deal with these bills
as they come up for hearing and to generally support any tort reform that
would be beneficial to cities. Attached for Council's information is a copy
of SB 75.
Tort Reform/Senate Bill 75
March 12, 1985
Page 2
The whole issue of tort reform is a difficult one, as there are many opponents
in Sacramento, the Trial Lawyers Association has many allies on the Assembly
Judiciary Committee. However, this year looks promising for some sort of
reform, and staff looks forward to working with the Council and the League
of California Cities in order to assist that effort.
Cordially,
Royleen A. White, Director
Community and Administrative Services
RAW/kaw
Attachment: SB 75
' SENATE BILL
No. 75
Introduced by Senator Foran
(Principal coauthors: Senators Beverly and MontoYa)
RECEIVED
December 13, 1984
FEB 2, 2 1985
An act to amend Sections 1431 and 1432 of, and to add
Section 1431.1 to, the Civil Code, and to amend Section 625 of
the Code of Civil Procedure, relating to joint and several
liability.
LEGISLATrVE COUNSEL'S DIGEST
SB 7§, as introduced, For~,~. Joint and several liability.
Under existing law, in an action based upon negligence or
..- product liability ag~iu.~t multiple to~L~easors for an indivisible
· 'i injury, the torffeasors are jointly and severaJly liable for all
'-' compensable rlamages attributable to that injury except that
they are not liable for damages attributable to the negligence
of the p}~i,~tiff. However, torffeasors may seek equitable
.:'- . indemnity from other torffeasors.
- Thi.~ bill would provide that in an action for personal injury,
property damage, or death, where an indivisible injury was
caused by g or more persons, the damages shall be equitably
apportioned ~mong them by the trier of fact. Each torffeasor~
as to economic R_ _~rnages, would remalr~ jointly and severally
liable for such damages. HOwever, each torffeasor, as to
~loneconomic ~ruages, would be liable for the percentage of
sUch damages allocated to that person, and liability would be
several and' not joint. The apportionment of damages would
;,~;be made without regard to any immunity, but the
ould ot aHe yir~ unity Th all
"apportiomnent w n ct an m . e ocation
of damages would not apply to intentional injuries, as
The bill would enact related provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
~-; State-mandated local program: no.
CALIFORN!:', ~ ~ '; ........ r~Trm
JOHN ~- ~ :,':,~'...,R
SB 75
The people o£ the State o£ California do enact as £ollovvs:
1 SECTION 1. Section 1431 of the Civil Code is
9. amended to read:
3 1431. 9m Except as provided in Section 1481.1, and
4 except in the special cases mentioned in this title, an
~ obligation imposed upon several persons, or a right
fi created in favor of several persons, is presumed to be
7 joint, and not several;
8 ~' i~ ~ TiflJ
9 ~am~n,~. This presumption, in the case of a right, can be
10 overcome only by express words to the contrary.
11 SEC. 9.. Section 1431.t is added to the Civil Code, to
19. read:
13 1431.1. (a) In an action for perso~ injury, property
14 ch2_mages, or wrongful death, where an indivisible jury has
1~ been sustained by the plaintiff as a pro~4mate result of the
lfi wrongful conduct of two or more persons, the totM
17 damages sustained by the plaintiff and to which the
18 conduct of all of those persons has contributed shall be
19 equitably apportioned among them by the trier of fact,
9.0 based upon the degree of fault, if any, of the persons and
21 upon the degree to which the conduct of' each
22 contributed to causing the compensable damages. The
23 amount so apportioned shall be stated as a percentage
24 which sbM! aggregate 100 percent with respect to all of
25 those persons. The apportionment shall be made without
26 regard to any immunity fi.om liability of any one or more
27 of the persons for conduct normMly imposing .liability,
28 such.as the immunity of an employer fi.om liability to an
29 employee covered by workers' compensation or the
~0 irnnlunity fi.om liability of a governmental entity.
31 Nothing in this section shall affect that immunity.
32 (b) The trier of fact shall deter,due the total amount
33 of damages, ff any, sustained by the plaiutiff and shall
34 divide the total ~mount of damages into economic and
35 noneconomic catagories. The division of damages sbM1 be
36 stated as dollar amounts which shall aggregate 100
37 percent of the plaintiff's damages. For purposes of this
38 section, the term "economic damages" means objectively
SB 75
~ 1 veri~ble pecuniary losses includlrtg, but not limited to,
2 burial costs, medical expenses, loss of earnings, loss of use
3 of property, costs of repair or replacement, costs of
4 obtaining substitute domestic services, loss of
5 employment, and loss of business or employment
6 opportunities. For the purposes of this section, the term
.~ 7 "noneconornic damages" means subjective,
8 nonpecuniary losses includirtg, but not limited to, pain,
9 suffering, inconvenience, mental suffering, emotional
10 ellmtress, loss of society and' companionship, loss of
11 conso~tluna, injury to reputation, and humiliation.
12 (c) (1) The liability of the multiple tortfeasors for
13 economic damages slu~{! .be joint and several.
14 (o~) The liability of each tortfeasor for noneconomic
15 damages shall be several only and shall not be joint.
16 (3) Each toriYeasor shall be liable only for the
17 percentage of d_~raages dete~,~fined pursuant to
18 ' subdivision (a) and allocated to that person from the total
19 compensable noneconornic damages, and a separate
~ 28 jud~,~ent sh~{l be rendered against the person for that
o.o. (4) The allocation provided £or in paragraph (3) sball
23 be made after deducting the portion of the noneconornic
, , 24 damages equal to the percentage found by the taler of
~ 25 fact to be attxlbutable to the wrongful conduct, ii: any, of
26 the p]airttiff.
27 (d) The allocation provided for by this section shall
28 not apply to any person who intentionally injures
29 another. That person shall be liable for all damages
30 inflicted and compensable under the law. However, an
31 apportionment shall be made under {aais section w-ith
30. respect to any other persons liable and not g~{i{ty of
33 intentional conduct, including for that purpose an
(-) 34 allocation to the intentional actor. Axiy person so liable
-'35 shall have a right of indemni_gication against the
36 intentional actor.
37 (e) If one person is vicariously liable for the conduct
38 of another, they shall be treated as one person for the
39 purposes of {aais section and the same percentage
(.. 40 nl{ocated to each for which they shall be jointly liable, and
SB 75 -- 4 --
I this section shall not affect whatever right o£
2 indemnification or contribution may exist between them.
3 (f) Except as provided in subdiv/sions (d) and (e), no
4 right o£ contribution as to the liability for noneconomic
5 damages shall~ exist in favor o£ one person liable against
6 another person who is liable in any action specified in
7 subdivison (a).
8 (g) In any action for personal injury, property
9 damage, 0r wron~ul death, a claim by the plaintiff and
10 a eounterelairn by any de£enadant shall be set off, and a
11 jud~;iuent shall be entered only for the net amount in
1~. favor o£ the person awarded the higher recovery.
13 (h) Nothing in this section shall invalidate rights to
14 indemnification or contribution which are provided for
15 by' contract.
16 SEC. $. Section 1432 o£ the Civil Code is amended to
17 read:
i8 1432. ~ Except as provided in Section 1431.1, a party
19 to a joint, or joint and several obligation, who satisfies
20 more than his or her share o£ the claim against all, may
21 require a proportionate contribution from all the parties
~ joined with him or her.
fi,3 SEC. 4. Section 69,5 o£ the Code o£ Civil Procedure is
24 amended to read:
25 625. (a) In all cases the court may direct the jury to
26 Fred a special verdict.in wri~_ug, upon all, or any o£ the
27 issues, and in all cases may instruct them, ff they render
28 a general verdict, to Fred upon particular questiom o£~
29 £act, to be stated in writing, and may direct a written
30 Fmdlng thereon. In all cases in which the issue o£ punitive
31 damages is presented to the jury the court shall direct the
32 jury to Fred a special verdict in writing separal~ng
33 punitive damages from compensatory damages. The
34 special verdict or finding mu~'~ st~i! be filed with the
35 clerk and entered upon the minutes. V..'kcrc Lc a special
36 finding o£ £acts is inconsistent with the general verdict,
37 the £on~er controls the latter, ~nd the court ~u:~ shall
38 give judgment accorHiugl¥.
39 (b) In an action £or personal injury, property damage,
40 or wrongful death, wl~ere a~ indivisible injury has been
~ 5 ~' SB 75
sustained by the plaintiff as a pro'mate result of the
wrongful conduct of'two or more persons, the court 'shall
direct the jury to return a special verdict in writing
incorporsting the allocations required by subdivi~'ons
(a), (b)~ and (e) of Section 1431.1 of the ~'vH Code.