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					BIL:     3054
TYP:     General Bill GB
INB:     House
IND:     19990112
PSP:     Kirsh
SPO:     Kirsh, Robinson, Simrill
DDN:     l:\council\bills\bbm\10028som99.doc
CBN:     534
RBY:     House
COM:     Judiciary Committee 25 HJ
SUB:     Punitive damages in civil actions, recovery amount limited; attorneys
         fees, Courts, Torts


HST:

Body     Date       Action Description                        Com     Leg Involved
______   ________   _______________________________________   _______ ____________
House    19990112   Introduced, read first time,              25 HJ
                    referred to Committee
House    19981209   Prefiled, referred to Committee           25 HJ


Printed Versions of This Bill




TXT:
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 9                              A BILL
10
11   TO AMEND TITLE 15, CODE OF LAWS OF SOUTH
12   CAROLINA, 1976, RELATING TO CIVIL REMEDIES AND
13   PROCEDURES BY ADDING CHAPTER 34 SO AS TO
14   ESTABLISH STANDARDS AND PROCEDURES FOR THE
15   RECOVERY OF PUNITIVE DAMAGES IN CIVIL ACTIONS,
16   INCLUDING A LIMIT ON THE MAXIMUM AMOUNT OF
17   PUNITIVE DAMAGES WHICH MAY BE AWARDED, THE
18   MANNER IN WHICH PUNITIVE DAMAGES MUST BE
19   STATED AND PLED, THE RESPONSIBILITIES OF THE
20   TRIER OF FACT AND THE COURT WITH REGARD TO
21   PUNITIVE DAMAGES, AND THE AWARDING OF
22   ATTORNEY‟S FEES IN FRIVOLOUS OR MALICIOUS
23   PUNITIVE DAMAGE CLAIMS; AND TO REPEAL SECTION
24   15-33-135 OF THE 1976 CODE RELATING TO PUNITIVE
25   DAMAGES AND THE BURDEN OF PROOF.
26
27   Be it enacted by the General Assembly of the State of South
28   Carolina:
29
30   SECTION 1. Title 15 of the 1976 Code is amended by adding:
31
32                            “CHAPTER 34
33
34                           Punitive Damages
35
36     Section 15-34-10. Subject to the provisions of this chapter,
37   punitive damages may be awarded in a civil action to punish a
38   defendant for wilful, wanton, or reckless conduct and to deter the
39   defendant and others from committing similar wrongful acts.
40
41     Section 15-34-20. As used in this chapter:


     [3054]                          1
 1        (1) „Claimant‟ means a party, including a plaintiff,
 2   counterclaimant, cross-claimant, or third-party plaintiff, seeking
 3   recovery of punitive damages.
 4        (2) „Compensatory damages‟ includes nominal damages.
 5        (3) „Defendant‟       means      a    party,    including    a
 6   counterdefendant, cross-defendant, or third-party defendant, from
 7   whom a claimant seeks relief with respect to punitive damages.
 8        (4) „Fraud‟ does not include constructive fraud unless an
 9   element of intent is present.
10        (5) „Malice‟ means a sense of personal ill will toward the
11   claimant that activated or incited the defendant to perform the act
12   or undertake the conduct that resulted in harm to the claimant.
13        (6) „Punitive damages‟ means extracompensatory damages
14   awarded for the purposes set forth in Section 15-34-10.
15        (7) „Wilful, wanton, or reckless conduct‟ means the
16   conscious and intentional disregard of and indifference to the
17   rights and safety of others, which the defendant knows or should
18   know are reasonably likely to result in injury, damage, or other
19   harm. „Wilful, wanton, or reckless conduct‟ means more than
20   gross negligence.
21
22      Section 15-34-30. (A) This chapter applies to every claim for
23   punitive damages, regardless of whether the claim for relief is
24   based on a statutory or a common-law right of action or based in
25   equity. In an action subject to this chapter, in whole or in part, the
26   provisions of this chapter prevail over any other provision of law
27   to the contrary.
28      (B) The provisions of this chapter do not apply to actions
29   brought under the South Carolina Tort Claims Act.
30
31      Section 15-34-40. (A) Punitive damages may be awarded only
32   if the claimant proves that the defendant is liable for compensatory
33   damages and that one of the following aggravating factors was
34   present and was related to the injury for which compensatory
35   damages were awarded:
36         (1) fraud;
37         (2) malice; or
38         (3) wilful, wanton, or reckless conduct.
39      (B) The claimant must prove the existence of an aggravating
40   factor by clear and convincing evidence.
41      (C) Punitive damages shall not be awarded against a person
42   solely on the basis of vicarious liability for the acts or omissions of
43   another. Punitive damages may be awarded against a person only

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 1   if that person participated in the conduct constituting the
 2   aggravating factor giving rise to the punitive damages or if, in the
 3   case of a corporation, the officers, directors, or managers of the
 4   corporation participated in or condoned the conduct constituting
 5   the aggravating factor giving rise to punitive damages.
 6     (D) Punitive damages shall not be awarded against a person
 7   solely for breach of contract.
 8
 9      Section 15-34-50. A claimant must elect, prior to judgment,
10   between punitive damages awarded pursuant to the provisions of
11   this chapter or any other remedy pursuant to another statute that
12   provides for multiple damages.
13
14      Section 15-34-60. (A) In all actions seeking an award of
15   punitive damages, the trier of fact shall determine the amount of
16   punitive damages separately from the amount of compensation for
17   all other damages.
18      (B) Except as provided in subsection (D), punitive damages
19   awarded against a defendant shall not exceed three times the
20   amount of compensatory damages or two hundred fifty thousand
21   dollars, whichever is greater. If a trier of fact returns a verdict for
22   punitive damages in excess of the maximum amount specified
23   under this subsection, the trial court shall reduce the award and
24   enter judgment for punitive damages in the maximum amount.
25      (C) The provisions of subsection (B) of this section shall not be
26   made known to the trier of fact through any means, including voir
27   dire, the introduction into evidence, argument, or instructions to
28   the jury.
29      (D) The provisions of subsection (B) of this section do not
30   apply to a claim for punitive damages for injury or harm arising
31   from a defendant‟s operation of a motor vehicle if the actions of
32   the defendant in operating the motor vehicle would give rise to an
33   offense of driving while under the influence of intoxicating liquor,
34   drugs, or like substances.
35
36      Section 15-34-70. Upon the motion of a defendant, the issues
37   of liability for compensatory damages and the amount of
38   compensatory damages, if any, shall be tried separately from the
39   issues of liability for punitive damages and the amount of punitive
40   damages, if any. Evidence relating solely to punitive damages
41   shall not be admissible until the trier of fact has determined that
42   the defendant is liable for compensatory damages and has
43   determined the amount of compensatory damages. The same trier

     [3054]                             3
 1   of fact that tried the issues relating to compensatory damages shall
 2   try the issues relating to punitive damages.
 3
 4      Section 15-34-80. (A)       In determining the amount of
 5   punitive damages, if any, to be awarded, the trier of fact:
 6        (1) shall consider the purposes of punitive damages set forth
 7   in Section 15-34-10; and
 8        (2) may consider only that evidence that relates to the
 9   following:
10           (a) the reprehensibility of the defendant‟s motives and
11   conduct;
12           (b) the likelihood, at the relevant time, of serious harm;
13           (c) the degree of the defendant‟s awareness of the
14   probable consequences of its conduct;
15           (d) the duration of the defendant‟s conduct;
16           (e) the actual damages suffered by the claimant;
17           (f) any concealment by the defendant of the facts or
18   consequences of its conduct;
19           (g) the existence and frequency of any similar past
20   conduct by the defendant;
21           (h) whether the defendant profited from the conduct;
22           (i) the defendant‟s ability to pay punitive damages, as
23   evidenced by its revenues or net worth.
24      (B) In a jury trial, the court shall instruct the jury with regard to
25   items (1) and (2) of Section 15-34-80(A).
26
27      Section 15-34-90. The court shall award reasonable attorney‟s
28   fees, resulting from the defense against the punitive damages
29   claim, against a claimant who files a claim for punitive damages
30   that the claimant knows or should have known is frivolous or
31   malicious. The court shall award reasonable attorney‟s fees
32   against a defendant who asserts a defense in a punitive damages
33   claim that the defendant knows or should have known is frivolous
34   or malicious.
35
36      Section 15-34-100. When reviewing the evidence regarding a
37   finding by the trier of fact concerning liability for punitive
38   damages in accordance with Section 15-34-40(A), or regarding the
39   amount of punitive damages awarded, the trial court shall state in a
40   written opinion its reasons for upholding or disturbing the finding
41   or award. In doing so, the court shall address with specificity the
42   evidence, or lack thereof, as it bears on the liability for or the


     [3054]                             4
 1   amount of punitive damages, in light of the requirements of this
 2   chapter.
 3
 4      Section 15-34-110. A demand for punitive damages must be
 5   stated specifically, except for the amount, and the aggravating
 6   factor that supports the award of punitive damages must be averred
 7   with particularity. The amount of damages must be pled in
 8   accordance with applicable court rules adopted by the Supreme
 9   Court.”
10
11   SECTION 2. Section 15-33-135 of the 1976 Code is repealed.
12
13   SECTION 3. The provisions of this act are severable. If a portion
14   of this act is declared unconstitutional or the application of this act
15   to a person or circumstance is held invalid, the remaining portions
16   and their applications to a person or circumstance are valid.
17
18   SECTION 4. This act takes effect July 1, 1999, and applies to
19   claims arising on or after that date.
20                                 ----XX----




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