350 by wanghonghx

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									                                   South Carolina General Assembly
                                       118th Session, 2009-2010

S. 350

STATUS INFORMATION

General Bill
Sponsors: Senators L. Martin, Cleary, Alexander, Bryant, Campbell, Davis, Fair, Mulvaney, O'Dell,
Peeler, Ryberg, Shoopman, Verdin and Grooms
Document Path: l:\s-res\lam\005tort.mrh.lam.docx

Introduced in the Senate on January 29, 2009
Currently residing in the Senate Committee on Judiciary

Summary: Civil Fairness in Civil Justice Act


HISTORY OF LEGISLATIVE ACTIONS

    Date     Body     Action Description with journal page number
 1/29/2009   Senate   Introduced and read first time SJ-7
 1/29/2009   Senate   Referred to Committee on Judiciary SJ-7
  2/2/2009   Senate   Referred to Subcommittee: L.Martin (ch), Rankin, Hutto, Bright, Davis
 1/12/2010   Senate   Referred to Subcommittee: L.Martin (ch), Rankin, Hutto, Malloy, Campsen, Bright,
                         Davis

View the latest legislative information at the LPITS web site


VERSIONS OF THIS BILL

1/29/2009
 1
 2
 3
 4
 5
 6
 7
 8
 9                       A BILL
10
11   RELATING TO REFORM OF THE SOUTH CAROLINA CIVIL
12   JUSTICE SYSTEM, BY PROVIDING FOR THE SOUTH
13   CAROLINA FAIRNESS IN CIVIL JUSTICE ACT, TO AMEND
14   CHAPTER 32 OF TITLE 15 OF THE 1976 CODE, RELATING
15   TO DAMAGES IN PERSONAL INJURY ACTIONS, TO
16   PROVIDE LIMITS ON THE AWARD OF NONECONOMIC
17   AND PUNITIVE DAMAGES IN ALL PERSONAL INJURY
18   ACTIONS, AND TO PROVIDE FOR CERTAIN PROCEDURES
19   AND REQUIREMENTS RELATING TO THE AWARD OF
20   THESE DAMAGES; TO AMEND CHAPTER 7, TITLE 1 OF
21   1976 CODE, BY ADDING SECTION 1-7-750, TO PROVIDE
22   THE PRIVATE ATTORNEY RETENTION SUNSHINE ACT,
23   TO GOVERN THE RETENTION OF PRIVATE ATTORNEYS
24   BY THE ATTORNEY GENERAL OR A SOLICITOR, TO
25   PROVIDE TERMS AND CONDITIONS GOVERNING THE
26   RETAINER AGREEMENT INCLUDING LIMITS ON THE
27   COMPENSATION       OF    OUTSIDE    COUNSEL     IN
28   CONTINGENCY FEE CASES; TO AMEND SECTION
29   15-3-670, RELATING TO LIMITATIONS ON ACTIONS
30   BASED ON UNSAFE OR DEFECTIVE IMPROVEMENTS TO
31   REAL PROPERTY, TO PROVIDE THAT THE VIOLATION OF
32   A BUILDING CODE DOES NOT CONSTITUTE PER SE
33   FRAUD, GROSS NEGLIGENCE, OR RECKLESSNESS; TO
34   AMEND ARTICLE 1, CHAPTER 5, TITLE 15 OF THE 1976
35   CODE, BY ADDING SECTION 15-3-160, TO PROVIDE A
36   REBUTTABLE PRESUMPTION THAT A MANUFACTURER
37   OR SELLER IS NOT LIABLE FOR A PRODUCT IF IT IS
38   MANUFACTURED OR SOLD IN A MANNER APPROVED BY
39   A GOVERNMENT AGENCY; TO AMEND CHAPTER 5,
40   TITLE 15 OF THE 1976 CODE, BY ADDING SECTION
41   15-5-10, TO PROVIDE REQUIREMENTS AND PROCEDURES
42   TO BRING, MAINTAIN, AND CERTIFY CLASS ACTIONS;

     [350]                   1
 1   TO AMEND SECTION 15-73-10 OF THE 1976 CODE,
 2   RELATING TO THE LIABILITY OF A SELLER FOR A
 3   DEFECTIVE PRODUCT, TO PROVIDE THAT THE SELLER IS
 4   NOT SUBJECT TO TORT LIABILITY FOR DAMAGE ONLY
 5   CAUSED TO THE PRODUCT ITSELF; TO AMEND SECTION
 6   18-9-130 OF 1976 CODE, RELATING TO THE EFFECT OF A
 7   NOTICE OF APPEAL ON THE EXECUTION OF JUDGMENT,
 8   TO PROVIDE LIMITS FOR APPEAL BONDS; TO AMEND
 9   SECTIONS 33-6-220 AND 33-44-303, RELATING TO
10   CORPORATIONS AND LIMITED LIABILITY COMPANIES,
11   TO PROVIDE THAT A JUDGMENT AGAINST A
12   CORPORATION OR LIMITED LIABILITY COMPANY IS A
13   PREREQUISITE TO AN ALTER EGO CLAIM TO PIERCE
14   THE CORPORATE VEIL; TO AMEND SECTION 39-5-20 OF
15   THE 1976 CODE, RELATING TO UNFAIR METHODS OF
16   COMPETITION AND UNFAIR OR DECEPTIVE ACTS OR
17   PRACTICES, TO PROVIDE ACTIONS OR TRANSACTIONS
18   OTHERWISE PERMITTED OR REGULATED BY THE
19   FEDERAL TRADE COMMISSION OR ANY OTHER
20   REGULATORY BODY OR OFFICE ACTING UNDER
21   STATUTORY AUTHORITY OF THIS STATE OR THE
22   UNITED STATES ARE NOT COVERED BY THE ACT; TO
23   AMEND SECTION 39-5-140, RELATING TO AN ACTION
24   FOR DAMAGES ARISING OUT OF AND UNFAIR OR
25   DECEPTIVE TRADE PRACTICE, TO PROVIDE THAT A
26   PERSON      SEEKING     DAMAGES    MUST    SUFFER
27   “OUT-OF-POCKET EXPENSES” AND TO DEFINE THIS
28   TERM; AND TO AMEND SECTION 56-5-6540, RELATING TO
29   THE PENALTIES FOR THE MANDATORY USE OF
30   SEATBELTS, TO PROVIDE THAT A VIOLATION MAY BE
31   CONSIDERED IN A CIVIL ACTION AS EVIDENCE OF
32   COMPARATIVE NEGLIGENCE OR AS EVIDENCE OF
33   FAILURE TO MITIGATE DAMAGES.
34
35   Be it enacted by the General Assembly of the State of South
36   Carolina:
37
38   SECTION 1. This act may be cited as the “South Carolina Civil
39   Fairness in Civil Justice Act of 2009”.
40
41   SECTION 2. Chapter 32, Title 15 of the 1976 Code is amended to
42   read:
43

     [350]                         2
 1                            “CHAPTER 32
 2
 3                                Article 1
 4                             [RESERVED]
 5                        Citation and Definitions
 6
 7     Section 15-32-100. This chapter may be cited as the „South
 8   Carolina Damage Awards Fairness Act‟.
 9
10      Section 15-32-110. As used in this chapter:
11      (1) „Claimant‟ means the person suffering personal injury.
12      (2) „Compensatory damages‟ includes both economic and
13   noneconomic damages.
14      (3) „Economic damages‟ means pecuniary damages arising
15   from medical expenses and medical care, rehabilitation services,
16   costs associated with education, custodial care, loss of earnings
17   and earning capacity, loss of income, burial costs, loss of use of
18   property, costs of repair or replacement of property, costs of
19   obtaining substitute domestic services, a claim for loss of spousal
20   services, loss of employment, loss of business or employment
21   opportunities, loss of retirement income, and other monetary
22   losses.
23      (4) „Drug,‟ „device,‟ „food,‟ and „food additive‟ have the
24   meanings defined in the „Federal Food, Drug, and Cosmetic Act.‟
25      (5) „Malice‟ means either conduct which is specifically
26   intended by the defendant to cause tangible or intangible serious
27   injury to the plaintiff or conduct that is carried out by the
28   defendant both with a flagrant indifference to the rights of the
29   plaintiff and with a subjective awareness that such conduct will
30   result in tangible serious injury.
31      (6) „Medical malpractice‟ means doing that which the
32   reasonably prudent health care provider or health care institution
33   would not do or not doing that which the reasonably prudent health
34   care provider or health care institution would do in the same or
35   similar circumstances.
36      (7) „Noneconomic damages‟ means nonpecuniary damages
37   arising from pain, suffering, inconvenience, physical impairment,
38   disfigurement, mental anguish, emotional distress, loss of society
39   and companionship, loss of consortium, injury to reputation,
40   humiliation, other nonpecuniary damages, and any other theory of
41   damages including, but not limited to, fear of loss, illness, or
42   injury.


     [350]                            3
 1      (8) „Nominal damages‟ means damages that are not designed
 2   to compensate a plaintiff and are less than five hundred dollars.
 3      (9) „Personal injury‟ means injuries to the person including,
 4   but not limited to, bodily injuries, mental distress or suffering, loss
 5   of wages, loss of services, loss of consortium, wrongful death,
 6   survival, and other noneconomic damages and actual economic
 7   damages.
 8      (10) „Personal injury action‟ means an action for personal
 9   injury, including a wrongful death action pursuant to Sections
10   15-51-10 through 15-51-60 and a survival action pursuant to
11   Section 15-5-90, and including, but not limited to, an action on a
12   medical malpractice claim.
13      (11) „Punitive damages‟ includes exemplary or vindictive
14   damages and means damages awarded against a party in a civil
15   action because of aggravating circumstances in order to penalize
16   and to discourage similar conduct in the future. Punitive damages
17   do not include compensatory damages or nominal damages.
18
19     Section 56-32-120. The provisions of this article do not affect
20   any right, privilege, or provision of the South Carolina Tort Claims
21   Act pursuant to Chapter 78, Title 15 or the South Carolina
22   Solicitation of Charitable Funds Act as contained in Chapter 56,
23   Title 33.
24
25                              Article 3
26                     Noneconomic Damage Awards
27
28     Section 15-32-200. This article may be cited as the „South
29   Carolina Noneconomic Damage Awards Act of 2005‟.
30
31      Section 15-32-210. As used in this article, unless the context
32   clearly requires otherwise:
33      (1) „Ambulatory surgical facility‟ means a licensed, distinct,
34   freestanding, self-contained entity that is organized, administered,
35   equipped, and operated exclusively for the purpose of performing
36   surgical procedures or related care, treatment, procedures, and/or
37   services, by licensed health care providers, for which patients are
38   scheduled to arrive, receive surgery or related care, treatment,
39   procedures, and/or services, and be discharged on the same day.
40   This term does not include abortion clinics.
41      (2) „Claimant‟ means the person suffering personal injury.
42      (3) „Economic damages‟ means pecuniary damages arising
43   from medical expenses and medical care, rehabilitation services,

     [350]                              4
 1   costs associated with education, custodial care, loss of earnings
 2   and earning capacity, loss of income, burial costs, loss of use of
 3   property, costs of repair or replacement of property, costs of
 4   obtaining substitute domestic services, a claim for loss of spousal
 5   services, loss of employment, loss of business or employment
 6   opportunities, loss of retirement income, and other monetary
 7   losses.
 8      (4) „Health care institution‟ means an ambulatory surgical
 9   facility, a hospital, an institutional general infirmary, a nursing
10   home, and a renal dialysis facility.
11      (5) „Health care provider‟ means a physician, surgeon,
12   osteopath, nurse, oral surgeon, dentist, pharmacist, chiropractor,
13   optometrist, podiatrist, or similar category of licensed health care
14   provider, including a health care practice, association, partnership,
15   or other legal entity.
16      (6) „Hospital‟ means a licensed facility with an organized
17   medical staff to maintain and operate organized facilities and
18   services to accommodate two or more nonrelated persons for the
19   diagnosis, treatment, and care of such persons over a period
20   exceeding twenty-four hours and provides medical and surgical
21   care of acute illness, injury, or infirmity and may provide
22   obstetrical care, and in which all diagnoses, treatment, or care are
23   administered by or performed under the direction of persons
24   currently licensed to practice medicine and surgery in the State of
25   South Carolina. This term includes a hospital that provides
26   specialized service for one type of care, such as tuberculosis,
27   maternity, or orthopedics.
28      (7) „Institutional general infirmary‟ means a licensed facility
29   which is established within the jurisdiction of a larger nonmedical
30   institution and which maintains and operates organized facilities
31   and services to accommodate two or more nonrelated students,
32   residents, or inmates with illness, injury, or infirmity for a period
33   exceeding twenty-four hours for the diagnosis, treatment, and care
34   of such persons and which provides medical, surgical, and
35   professional nursing care, and in which all diagnoses, treatment, or
36   care are administered by or performed under the direction of
37   persons currently licensed to practice medicine and surgery in the
38   State of South Carolina.
39      (8) „Medical malpractice‟ means doing that which the
40   reasonably prudent health care provider or health care institution
41   would not do or not doing that which the reasonably prudent health
42   care provider or health care institution would do in the same or
43   similar circumstances.

     [350]                             5
 1      (9) „Noneconomic damages‟ means nonpecuniary damages
 2   arising from pain, suffering, inconvenience, physical impairment,
 3   disfigurement, mental anguish, emotional distress, loss of society
 4   and companionship, loss of consortium, injury to reputation,
 5   humiliation, other nonpecuniary damages, and any other theory of
 6   damages including, but not limited to, fear of loss, illness, or
 7   injury.
 8      (10) „Nursing home‟ means a licensed facility with an organized
 9   nursing staff to maintain and operate organized facilities and
10   services to accommodate two or more unrelated persons over a
11   period exceeding twenty-four hours which is operated either in
12   connection with a hospital or as a freestanding facility for the
13   express or implied purpose of providing skilled nursing services
14   for persons who are not in need of hospital care. This term does
15   not include assisted living, independent living, or community
16   residential care facilities that do not provide skilled nursing
17   services.
18      (11) „Personal injury‟ means injuries to the person including,
19   but not limited to, bodily injuries, mental distress or suffering, loss
20   of wages, loss of services, loss of consortium, wrongful death,
21   survival, and other noneconomic damages and actual economic
22   damages.
23      (12) „Personal injury action‟ means an action for personal
24   injury, including a wrongful death action pursuant to Sections
25   15-51-10 through 15-51-60 and a survival action pursuant to
26   Section 15-5-90.
27      (13) „Renal dialysis facility‟ means an outpatient facility which
28   offers staff assisted dialysis or training and supported services for
29   self-dialysis to end-stage renal disease patients.
30      (14) „Skilled nursing services‟ means services that:
31        (a) are ordered by a physician;
32        (b) require the skills of technical or professional personnel
33   such as registered nurses, licensed practical (vocational) nurses,
34   physical therapists, occupational therapists, and speech
35   pathologists or audiologists; and
36        (c) are furnished directly by, or under the supervision of
37   such personnel.
38
39      Section 15-32-220. (A) In an a personal injury action on a
40   medical malpractice claim when final judgment is rendered against
41   a single health care provider defendant, the limit of civil liability
42   for noneconomic damages of the health care provider defendant is
43   limited to an amount not to exceed three hundred fifty thousand

     [350]                              6
 1   dollars for each claimant, regardless of the number of separate
 2   causes of action on which the claim is based, except as provided in
 3   subsection (E)(D).
 4      (B) In an action on a medical malpractice claim when final
 5   judgment is rendered against a single health care institution, the
 6   limit of civil liability for noneconomic damages is limited to an
 7   amount not to exceed three hundred fifty thousand dollars for each
 8   claimant, regardless of the number of separate causes of action on
 9   which the claim is based, except as provided in subsection (E).
10      (C)(B) In an a personal injury action on a medical malpractice
11   claim when final judgment is rendered against more than one
12   health care institution defendant, or more than one health care
13   provider, or any combination thereof, the limit of civil liability for
14   noneconomic damages for each health care institution and each
15   health care provider defendant is limited to an amount not to
16   exceed three hundred fifty thousand dollars for each claimant, and
17   the limit of civil liability for noneconomic damages for all health
18   care institutions and health care providers defendants is limited to
19   an amount not to exceed one million fifty thousand dollars for each
20   claimant, except as provided in subsection (E) (D).
21      (D)(C)(1) The provisions of this section do not limit the amount
22   of compensation for economic damages suffered by each claimant
23   in a medical malpractice claim personal injury action.
24         (2) The provisions of this section do not limit the amount of
25   punitive damages in cases where the plaintiff is able to prove an
26   entitlement to an award of punitive damages as required by law.
27      (E)(D) The limitations for noneconomic damages rendered
28   against any health care provider defendant do not apply if the jury
29   or court determines that the defendant was grossly negligent,
30   wilful, wanton, or reckless, and such conduct was the proximate
31   cause of the claimant‟s noneconomic damages, or if the defendant
32   has engaged in fraud or misrepresentation related to the claim, or if
33   the defendant altered or destroyed medical records with the
34   purpose of avoiding a claim or liability to the claimant.
35      (F)(E) At the end of each calendar year, the State Budget and
36   Control Board, Board of Economic Advisors must determine the
37   increase or decrease in the ratio of the Consumer Price Index to the
38   index as of December 31 of the previous year, and the limitation
39   on compensation for noneconomic damages pursuant to subsection
40   (A), and (B), or (C) must be increased or decreased accordingly.
41   As soon as practicable after this adjustment is calculated, the
42   Director of the State Budget and Control Board shall submit the
43   revised limitation on compensation to the State Register for

     [350]                             7
 1   publication pursuant to Section 1-23-40(2), and the revised
 2   limitation becomes effective upon publication in the State Register.
 3   For purposes of this subsection, „Consumer Price Index‟ means the
 4   Consumer Price Index for All Urban Consumers as published by
 5   the United States Department of Labor, Bureau of Labor Statistics.
 6   For the calendar year in which this at takes effect, the adjusted
 7   limits in effect as provided by Act 32 of 2005 shall be the limits
 8   when this act takes effect and shall be adjusted accordingly in
 9   subsequent calendar years as provided by this subsection.
10
11     Section 15-32-230. (A) In an action involving a medical
12   malpractice claim arising out of care rendered in a genuine
13   emergency situation involving an immediate threat of death or
14   serious bodily injury to the patient receiving care in an emergency
15   department or in an obstetrical or surgical suite, no physician may
16   be held liable unless it is proven that the physician was grossly
17   negligent.
18     (B) In an action involving a medical malpractice claim arising
19   out of obstetrical care rendered by a physician on an emergency
20   basis when there is no previous doctor/patient relationship between
21   the physician or a member of his practice with a patient or the
22   patient has not received prenatal care, such physician is not liable
23   unless it is proven such physician is grossly negligent.
24     (C) The limitation on physician liability established by
25   subsections (A) and (B) shall only apply if the patient is not
26   medically stable and:
27        (1) in immediate threat of death; or
28        (2) in immediate threat of serious bodily injury.
29     Further, the limitation on physician liability established by
30   subsections (A) and (B) shall only apply to care rendered prior to
31   the patient‟s discharge from the emergency department or
32   obstetrical or surgical suite.
33
34     Section 15-32-240. The provisions of this article do not affect
35   any right, privilege, or provision of the South Carolina Tort Claims
36   Act pursuant to Chapter 78, Title 15 or the South Carolina
37   Solicitation of Charitable Funds Act as contained in Chapter 56,
38   Title 33.
39
40                               Article 5
41                           Punitive Damages
42


     [350]                            8
 1      Section 15-32-250. (A) A claim for punitive damages must
 2   be specifically prayed for in the complaint.
 3      (B) The plaintiff must specifically plead either:
 4         (1) that at least thirty days in advance of filing the
 5   complaint, that the plaintiff has given notice of seeking damages
 6   pursuant to this article and that in good faith a reasonable
 7   settlement could not be reached; or
 8         (2) that thirty days notice under this section could not be
 9   given because of exigent circumstances.
10      (C) The plaintiff shall not specifically plead an amount of
11   punitive damages, only that punitive damages are sought in the
12   action.
13      (D) The prayer for punitive damages must be stricken prior to
14   trial by the court, unless the plaintiff presents prima facie evidence
15   sufficient to sustain an award of punitive damages under this
16   chapter to the court at a pretrial hearing held at least thirty days
17   prior to trial.
18
19      Section 15-32-260. (A) All actions tried before a jury involving
20   punitive damages must, if requested by any defendant, be
21   conducted in a bifurcated manner before the same jury.
22      (B) In the first stage of a bifurcated trial, the jury shall
23   determine liability for compensatory damages and the amount of
24   compensatory or nominal damages. Evidence relevant only to the
25   issues of punitive damages is not admissible at this stage.
26      (C) Punitive damages may be considered if compensatory
27   damages have been awarded in the first stage of the trial. An
28   award of nominal damages cannot support an award of punitive
29   damages.
30      (D) Punitive damages may only be awarded if the plaintiff
31   proves by clear and convincing evidence that his harm was the
32   result of actual malice. This burden of proof may not be satisfied
33   by proof of any degree of negligence, including gross negligence.
34      (E) In the second stage of a bifurcated trial, the jury shall
35   determine if a defendant is liable for punitive damages and, if
36   determined to be liable, the amount of punitive damages. In
37   determining the amount of punitive damages, the jury shall
38   consider all relevant evidence, including:
39        (1) the severity of the harm caused by the defendant;
40        (2) the extent to which the plaintiff‟s own conduct
41   contributed to the harm;
42        (3) the duration of the conduct, the defendant‟s awareness,
43   and any concealment by the defendant;

     [350]                             9
 1        (4) the profitability of the conduct to the defendant;
 2        (5) awards of compensatory and punitive damages to
 3   persons similarly situated to the plaintiff;
 4        (6) prospective awards of compensatory damages to persons
 5   similarly situated to the plaintiff;
 6        (7) any criminal penalties imposed on the defendant as a
 7   result of the conduct complained of by the plaintiff; and
 8        (8) the amount of any civil fines assessed against the
 9   defendant as a result of the conduct complained of by the plaintiff.
10      (F) Evidence of a defendant‟s financial condition or net worth
11   is not admissible during the punitive damage phase of the trial,
12   although this evidence may be considered by the trial and appellate
13   courts in determining whether the award is excessive.
14      (G) If punitive damages are awarded, the trial court shall
15   carefully review the jury‟s decision, considering all relevant
16   evidence, including the factors identified in subsection (D), to
17   ensure that the award is not excessive or the result of passion or
18   prejudice.
19      (H) In any action with multiple defendants, a punitive damages
20   award must be specific to each defendant, and each defendant is
21   liable only for the amount of the award made against that
22   defendant.
23
24      Section 15-32-270. No award of punitive damages may exceed
25   three times the amount of the plaintiff‟s compensatory damages
26   award or $250,000, whichever is greater. If the defendant is an
27   individual or a business with fifty or fewer employees, no award of
28   punitive damages may exceed three times the amount of the
29   plaintiff‟s compensatory damages or $250,000, whichever is less.
30
31      Section 15-32-280. (A) Punitive damages shall not be awarded
32   if a drug or device or combination device or food or food additive
33   which caused the harm:
34         (1) was subject to premarket approval or licensure by the
35   federal Food and Drug Administration under the „Federal Food,
36   Drug, and Cosmetic Act,‟ 52 Stat.1040, 21 U.S.C.Sec.301 et seq.
37   or the „Public Health Service Act,‟ 58 Stat.682, 42 U.S.C.Sec.201
38   et seq. and was approved or licensed; or
39         (2) is generally recognized as safe and effective pursuant to
40   conditions established by the federal Food and Drug
41   Administration and applicable regulations, including packaging
42   and labeling regulations.


     [350]                            10
 1      (B) This exception shall not apply when the plaintiff proves by
 2   clear and convincing evidence that the product manufacturer:
 3        (1) knowingly and in violation of applicable agency
 4   regulations withheld or misrepresented information required to be
 5   submitted to the agency, when the information was material and
 6   relevant to the harm in question; or
 7        (2) made an illegal payment to an official of the federal
 8   Food and Drug Administration for the purpose of securing
 9   approval of the product.”
10
11   SECTION 3. Chapter 7, Title 1 of the 1976 Code is amended by
12   adding:
13
14       “Section 1-7-750. (A) This section may be cited as the
15   „Private Attorney Retention Sunshine Act‟.
16       (B) Any time the Attorney General or any solicitor retains,
17   engages, associates, hires, or otherwise obtains a private attorney,
18   attorneys, or law firm as outside counsel for any reason, the
19   outside counsel shall be required to enter into a contract that is
20   governed by the following terms, provisions, or conditions:
21         (1) The Attorney General or solicitor at his sole discretion
22   has the right to appoint a designated assistant, who must be an
23   assistant attorney general or solicitor, to oversee the litigation or
24   other matter for which outside counsel has been retained, which
25   appointment the Attorney General or solicitor may modify at will.
26         (2) The Attorney General or solicitor may provide attorneys
27   and other staff members to assist outside counsel with the
28   litigation. The identity and responsibilities of any personnel
29   assigned to assist must be determined solely by the Attorney
30   General or solicitor. All pleadings, motions, briefs, formal
31   documents, and agreements must bear the signature of the
32   Attorney General or solicitor or his designated assistant.
33         (3) Outside counsel shall coordinate the provision of legal
34   services with the Attorney General or solicitor or his designated
35   assistant, other personnel of the Office of the Attorney General or
36   solicitor, and any other person the Attorney General or solicitor
37   may appoint as outside counsel. All pleadings, motions, briefs,
38   and other material which may be filed with the court must first be
39   approved by the Attorney General or solicitor and provided to his
40   office in draft form in a reasonable and timely manner for review.
41         (4) Outside counsel will render services as an independent
42   contractor. Neither outside counsel nor any employee of outside
43   counsel shall be regarded as employed by, or as an employee of,

     [350]                            11
 1   the Attorney General or solicitor or the State. An attorney-client
 2   relationship shall exist between the Attorney General or solicitor
 3   and outside counsel.
 4         (5) Detailed time and cost records reflecting all work must
 5   be maintained by outside counsel and presented monthly to the
 6   Attorney General or solicitor.
 7         (6) The Attorney General or solicitor or his designated
 8   assistant must approve in advance all aspects of the litigation or
 9   other matter for which outside counsel has been retained and shall
10   be included in any settlement discussions. Outside counsel agrees
11   that any settlement must receive the Attorney General‟s or
12   solicitor‟s express prior approval in writing.
13         (7) Any material, data, files, discs, or documents created,
14   produced, or gathered by outside counsel, or in outside counsel‟s
15   possession in furtherance of the litigation or other matter for which
16   outside counsel has been retained, or which fulfills an obligation of
17   the appointment, is considered the exclusive property of the State.
18   Outside counsel agrees to adhere to the South Carolina Freedom of
19   Information Act, Section 30-4-10 et. seq., and maintain all public
20   records concerning the matter in accordance with state law;
21   provided, however, that outside counsel shall consult with, and
22   obtain the approval of, the Attorney General or solicitor before
23   responding to any public records request. The contract of retention
24   that satisfies this section is considered a public document. At the
25   conclusion of the litigation or other matter for which outside
26   counsel has been retained, all time records and monthly statements
27   maintained or presented by outside counsel are public documents.
28         (8) In contingent fee cases, outside counsel must not receive
29   compensation for any services rendered unless the State receives a
30   settlement or damage award in connection with the litigation. If
31   the State receives an award, outside counsel will be compensated
32   as follows:
33           (a) Outside counsel must be paid, not including punitive
34   or exemplary damages, the following percentages corresponding to
35   the amount of the judgment or settlement:
36              (i) up to $5,000,000 - twenty-three percent;
37              (ii) more than $5,000,000 but less than $10,000,000 -
38   nineteen percent;
39              (iii) more than $10,000,000 but less than $25,000,000 -
40   fifteen percent;
41              (iv) more than $25,000,000 but less than $50,000,000 -
42   eleven percent;


     [350]                            12
 1              (v) more than $50,000,000 but less than $100,000,000 -
 2   seven percent;
 3              (vi) in excess of $100,000,000 - four percent.
 4      Provided, that the Attorney General or solicitor shall retain ten
 5   percent of outside counsel‟s fees awarded pursuant to this
 6   subsection.
 7           (b) The remaining net settlement or judgment proceeding,
 8   but not including punitive or exemplary damages, if any, must be
 9   paid or applied to or for the State or the people of South Carolina
10   or the victims in a manner to be determined by the Attorney
11   General or solicitor in his sole discretion.
12           (c) Outside counsel must be paid the following
13   percentages corresponding to the amount of punitive or exemplary
14   damages:
15              (i) up to $10,000,000 - ten percent;
16              (ii) more than $10,000,000 but less than $100,000,000 -
17   five percent;
18              (iii) in excess of $100,000,000 - three percent.
19      Provided, that the Attorney General or solicitor shall retain ten
20   percent of outside counsel‟s fees awarded pursuant to this
21   subsection.
22           (d) The remaining amount of punitive and exemplary
23   damages must be paid or applied to or for the State or the people of
24   South Carolina or the victims in a manner to be determined by the
25   Attorney General or solicitor in his sole discretion.
26           (e) All settlement or judgment proceeds shall be paid by
27   or on behalf of any defendant to the Attorney General or solicitor‟s
28   office for distribution.
29           (f) The fee schedule required by this section applies to
30   any settlement or judgment, whether the settlement or judgment is
31   entirely monetary in nature or is combined with non-monetary
32   relief. Should the litigation be resolved by settlement or judgment
33   involving a combination of monetary and non-monetary relief,
34   such as injunctive relief, non-monetary payment, the provision of
35   goods or services or any other „in kind‟ terms, or any combination
36   of these, the Attorney General or solicitor shall determine the
37   monetary value to the State.
38         (9) Outside counsel must be reimbursed solely from the
39   gross recovery of the litigation or other matter for which outside
40   counsel has been retained as approved by the Attorney General or
41   solicitor for reasonable expenses and costs. Proper documentation
42   by receipts or otherwise must be submitted with all invoices and all
43   documentation must be retained by outside counsel for at least one

     [350]                            13
 1   year following the agreement‟s termination. All expenses must be
 2   itemized and no reimbursement may be applied for or requested
 3   for „miscellaneous‟ listings. The Attorney General or solicitor in
 4   his sole discretion may decline to reimburse outside Counsel for
 5   improperly documented, unnecessary, or unreasonable costs or
 6   expenses.
 7           (a) Outside counsel must be reimbursed for the retention
 8   of experts, including fees and other reasonable costs, only when
 9   expressly authorized by the Attorney General or solicitor.
10           (b) For reimbursements of expenses for lodging, travel, or
11   mileage, receipts are required and these expenses must be
12   expressly authorized in advance by the Attorney General or
13   solicitor.
14        (10) Outside counsel shall not speak to any representative of a
15   television station, radio station, newspaper, magazine, or any other
16   media outlet concerning the work outlined or contemplated in the
17   contract of retention without first obtaining approval of the
18   Attorney General or solicitor. Outside counsel is specifically
19   prohibited from speaking on behalf of the Attorney General or
20   solicitor or the State of South Carolina to any representative of the
21   news media.”
22
23   SECTION 4. Section 15-3-670 of the 1976 Code is amended to
24   read:
25
26     “Section 15-3-670. The limitation provided by Sections
27   15-3-640 through 15-3-660 may not be asserted as a defense by
28   any person in actual possession or control, as owner, tenant, or
29   otherwise, of the improvement at the time the defective or unsafe
30   condition constitutes the proximate cause of the injury or death for
31   which it is proposed to bring an action, in the event such person in
32   actual possession or control knows, or reasonably should have
33   known, of the defective or unsafe condition. The limitations
34   provided by Sections 15-3-640 through 15-3-660 are not available
35   as a defense to any person guilty of fraud, gross negligence, or
36   recklessness in providing components in furnishing materials, in
37   developing real property, in performing or furnishing the design,
38   plans, specifications, surveying, planning, supervision, testing or
39   observation of construction, construction of, or land surveying, in
40   connection with such an improvement, or to any person who
41   conceals any such cause of action. For purposes of this section,
42   the violation of a building code of any jurisdiction or political
43   subdivision does not constitute per se fraud, gross negligence, or

     [350]                            14
 1   recklessness. The limitation provided by Section 15-3-640 may
 2   not be asserted as a defense to any action for personal injury,
 3   including a personal injury resulting in death, or property damage
 4   which is (i) by its nature not discoverable in the exercise of
 5   reasonable diligence at the time of its occurrence and (ii) the result
 6   of ingestion of or exposure to some toxic or harmful or injury
 7   producing substance, element, or particle, including radiation, over
 8   a period of time as opposed to resulting from a sudden and
 9   fortuitous trauma.”
10
11   SECTION 5. Article 1, Chapter 3, Title 15 of the 1976 Code is
12   amended by adding:
13
14      “Section 15-3-160. (A) For the purpose of this section:
15        (1) „Government agency‟ means this State or the United
16   States, or any agency of thereof, or any entity vested with the
17   authority of this State or of the United States to issue rules,
18   regulations, orders, or standards concerning the design,
19   manufacture, packaging, labeling, or advertising of a product or
20   provision of a service.
21        (2) „Manufacturer‟ means any person who is engaged in a
22   business to produce, create, make, or construct any product or
23   component part of a product and who: (1) designs, manufactures,
24   or formulates the product or component part of the product; or (2)
25   has engaged another person to design, manufacture, or formulate
26   the product or component part of the product.
27        (3) „Product‟ means any object possessing intrinsic value,
28   capable of delivery either as an assembled whole or as a
29   component part or parts, and produced for introduction into trade
30   or commerce.
31        (4) „Seller‟ means a person who in the course of a business
32   conducted for that purpose: (1) sells, distributes, rents, leases,
33   prepares, blends, packages, labels, or otherwise is involved in
34   placing a product or service in the stream of commerce; or (2)
35   installs, repairs, refurbishes, reconditions, or maintains a product.
36        (5) „Service‟ means all activities engaged in for other
37   persons for a consideration, which activities involve predominantly
38   the performance of a service as distinguished from manufacture or
39   sale of a product and that are regulated, approved, or licensed by a
40   government agency. Services include, but are not limited to,
41   financial services and the provision of insurance.
42      (B) There is a rebuttable presumption that a manufacturer or
43   seller is not subject to liability as a matter of law, if:

     [350]                             15
 1         (1) the product alleged to have caused the harm was
 2   designed, manufactured, packaged, labeled, sold, or represented in
 3   relevant and material respects in accordance with the terms of an
 4   approval, license or similar determination of a government agency;
 5         (2) the product was in compliance with a statute of this State
 6   or the United States, or a standard, rule, regulation, order, or other
 7   action of a government agency pursuant to statutory authority,
 8   when the statute or agency action is relevant to the event or risk
 9   allegedly causing the harm and the product was in compliance at
10   the time the product left the control of the manufacturer or seller;
11   or
12         (3) the act or transaction forming the basis of the claim
13   involves terms of service, contract provisions, representations, or
14   other practices authorized by, or in compliance with, the rules,
15   regulations, standards, or orders of, or a statute administered by, a
16   government agency.
17      This presumption shall not extend to a product that departs from
18   its intended design due to a flaw created during the manufacturing
19   process, even though the product manufacturer or seller has
20   complied with all applicable state and federal standards or
21   regulations.
22      (C) A claimant may rebut the presumption provided in
23   subsection (B) by establishing through clear and convincing
24   evidence that:
25         (1) the government standards or regulations applicable to the
26   product or service were wholly inadequate to protect the public
27   from unreasonable risks of injury or damage;
28         (2) the manufacturer or seller of the product or service,
29   either before or after placing the product or service in the stream of
30   commerce, intentionally, and in violation of applicable regulations,
31   withheld from or misrepresented to the government agency
32   information material to the approval or maintaining of approval of
33   the product or service, and the material information is relevant to
34   the harm which the claimant allegedly suffered; or
35         (3) the manufacturer or seller secured or maintained
36   approval of the product or service through fraud, bribery, or undue
37   influence.”
38
39   SECTION 6. Chapter 5, Title 15 of the 1976 Code is amended by
40   adding:
41
42     “Section 15-5-10. (A) Notwithstanding any other provision of
43   law or rule to the contrary, one or more members of a class of state

     [350]                             16
 1   residents may sue as representative parties on behalf of all
 2   members of the class only if:
 3         (1) the class is so numerous that joinder of all members is
 4   impracticable;
 5         (2) there are questions of law or fact that the court or jury
 6   could reasonably reach conclusions or findings applicable to all
 7   class members;
 8         (3) the claims or defenses of the representative parties are
 9   typical of the claims or defenses of the class;
10         (4) the representative parties will fairly and adequately
11   protect the interests of the class;
12         (5) the class is defined in a manner to permit the
13   identification of class members before any adjudication on the
14   merits occur; and
15         (6) in cases in which the relief sought is not injunctive or
16   declaratory in regards to the class as a whole, the amount in
17   controversy exceeds one hundred dollars for each member of the
18   class.
19      A nonresident may initiate a class action or join a class, only if
20   the nonresident‟s injury occurred in this State.
21      (B) An action may be maintained as a class action if the
22   requirements of subsection (A) are met and in addition:
23         (1) the prosecution of separate actions by or against
24   individual members of the class would create a risk of:
25            (a) inconsistent or varying adjudications with respect to
26   individual members of the class which would establish
27   incompatible standards of conduct for the party opposing the class;
28   or
29            (b) adjudications with respect to individual members of
30   the class which would as a practical matter be dispositive of the
31   interests of the other members not parties to the adjudications or
32   substantially impair or impede their ability to protect their
33   interests;
34         (2) the party seeking to maintain the class action does not
35   seek any monetary relief and the party opposing the class has acted
36   or refused to act on grounds generally applicable to the class,
37   thereby making appropriate final injunctive relief or corresponding
38   declaratory relief with respect to the class as a whole; or
39         (3) the court finds:
40            (a) that the questions of law or fact as to which the court
41   or jury could reasonably reach conclusions or findings applicable
42   to all class members predominate over any questions affecting only
43   individual members;

     [350]                            17
 1            (b) that the evidence likely to be admitted at trial
 2   regarding the elements of the claims for which certification is
 3   sought and of the defenses to those are substantially similar to all
 4   class members; and
 5            (c) that a class action is superior to other available
 6   methods for the fair and efficient adjudication of the controversy.
 7       Factors to be considered are:
 8               (i) the interest of members of the class in individually
 9   controlling the prosecution or defense of separate actions;
10               (ii) the extent, nature, and maturity of any litigation
11   concerning the controversy already commenced by or against
12   members of the class;
13               (iii) whether it is probable that the amount which may be
14   recovered by individual class members will be large enough in
15   relation to the expense and effort of administering the action to
16   justify maintaining the case as a class action;
17               (iv) the desirability or undesirability of concentrating the
18   litigation of the claims in the particular forum;
19               (v) the difficulties likely to be encountered in the
20   management of a class action; and
21               (vi) the extent to which the allegations at issue are
22   subject to the jurisdiction of federal or state regulatory agencies.
23       (C)(1) As soon as practicable after the commencement of an
24   action brought as a class action, the court shall, after a hearing,
25   determine by order whether it is to be maintained as a class action.
26   An order issued pursuant to this subsection may be altered,
27   amended, or withdrawn at any time before the decision on the
28   merits. A court shall not certify that an action may be maintained
29   as a class action unless the proponents proffer clear and convincing
30   evidence that the action complies with all requirements for
31   certification. Any doubt as to whether this burden has been met
32   shall be resolved in favor of denying class certification. The court
33   shall decertify a class action upon any showing that an action has
34   ceased to satisfy the applicable requirements for maintaining the
35   case as a class action.
36         (2) If the court finds that the action should be maintained as
37   a class action, it shall certify the action by a written order setting
38   forth the basis for the specific findings as to how the class action
39   meets the requirements of this section.
40         (3) There shall be a rebuttable presumption against the
41   maintenance of a class action as to claims for which class members
42   would have to prove knowledge, reliance, or causation on an
43   individual basis.

     [350]                              18
 1        (4) The determination that an action may be maintained as a
 2   class action shall not relieve any member of the class from the
 3   burden of proving all elements of the member‟s cause of action,
 4   including individual injury and the amount of damages.
 5        (5) In any class action initiated pursuant to subsection
 6   (B)(3), the court shall direct to the members of the class the best
 7   notice practicable under the circumstances, including individual
 8   notice to all members who can be identified through reasonable
 9   effort. The notice shall include:
10           (a) a general description of the action, including the relief
11   sought, and the names of the representative parties;
12           (b) a statement of the right of a member of the class to be
13   excluded from the action by submitting an election to be excluded,
14   including the manner and time for exercising the election;
15           (c) a description of possible financial consequences for
16   the class;
17           (d) a general description of any counterclaim or notice of
18   intent to assert a counterclaim by or against members of the class,
19   including the relief sought;
20           (e) a statement that the judgment, whether favorable or
21   not, will bind members of the class who are not excluded from the
22   action;
23           (f) a statement that any member of the class may
24   intervene in the action and designate separate counsel;
25           (g) the address of counsel to whom members of the
26   proposed class may direct inquiries; and
27           (h) any other information the court deems appropriate.
28        (6) The plaintiff shall bear the expense of the notification
29   required by subsection (C)(5). The court may require other parties
30   to the litigation to cooperate in securing the names and addresses
31   of the persons within the class for the purpose of providing
32   individual notice, but any costs incurred by the party in providing
33   this cooperation shall be paid initially by the party claiming the
34   class action. Upon termination of the action, the court may allow
35   as taxable costs all or part of the expenses incurred by the
36   prevailing party.
37        (7) The judgment in an action maintained as a class action
38   under subsections (B)(1) or (B)(2), whether or not favorable to the
39   class, shall include and describe those whom the court finds to be
40   members of the class. The judgment in an action maintained as a
41   class action under subdivision (B)(3), whether or not favorable to
42   the class, shall include and specify or describe those to whom the
43   notice provided in subsection (C)(5) was directed, and who have

     [350]                            19
 1   not requested exclusion, and whom the court finds to be members
 2   of the class.
 3        (8) When appropriate, a class may be divided into subclasses
 4   and each subclass treated as a class, and the provisions of this
 5   section shall then be construed and applied accordingly.
 6      (D) In the conduct of actions to which this section applies, the
 7   court may issue orders:
 8        (1) determining the course of proceedings or prescribing
 9   measures to prevent undue repetition or complication in the
10   presentation of evidence or argument;
11        (2) requiring, for the protection of members of the class or
12   otherwise for the fair conduct of the action, that notice be given in
13   a manner the court determines to some or all of the class members
14   describing any step in the action, or of the proposed entry of
15   judgment, or of the opportunity of members to signify whether
16   they consider the representation fair and adequate, to intervene and
17   present claims and defenses, or otherwise join the action;
18        (3) imposing conditions on the representative parties or on
19   intervenors;
20        (4) requiring the pleadings to be amended to eliminate
21   allegations as to representation of absent persons, and that the
22   action proceed accordingly; and
23        (5) addressing other procedural matters.
24      (E)(1) A class action shall not be dismissed or compromised
25   without the court‟s approval, and notice of the proposed dismissal
26   or compromise shall be given to all members of the class in a
27   manner determined by the court.
28        (2) Before approving the dismissal or a compromise of an
29   action that the court has determined may be maintained as a class
30   action, the court shall hold a hearing to determine whether the
31   terms of the proposed dismissal or compromise are fair,
32   reasonable, and adequate for the class. At the hearing, all parties
33   to the action, including members of the class, shall be permitted an
34   opportunity to be heard as determined by the court.
35      (F) Representative parties and intervenors are subject to
36   discovery in the same manner as parties in other civil actions.
37   Other class members are subject to discovery in the same manner
38   as persons who are not parties, but may be required by the court to
39   submit to discovery procedures applicable to the representative
40   parties and intervenors.
41      (G) An order granting, denying, or decertifying a class action
42   pursuant to this section is immediately appealable upon the filing


     [350]                            20
 1   of a notice of appeal within ten days after entry of the order. The
 2   matter is stayed during the pendency of the appeal.”
 3
 4   SECTION 7. Section 15-73-10 of the 1976 Code is amended to
 5   read:
 6
 7      “Section 15-73-10. (1) One who sells any product in a
 8   defective condition unreasonably dangerous to the user or
 9   consumer or to his property is subject to tort liability for physical
10   harm caused to the ultimate user or consumer, or to his property, if
11        (a) The the seller is engaged in the business of selling such a
12   product,; and
13        (b) It it is expected to and does reach the user or consumer
14   without substantial change in the condition in which it is sold.
15      (2) One who sells any product in a defective condition is not
16   subject to tort liability for physical harm or damage caused only to
17   the product itself, regardless of whether the serious threat of
18   physical bodily harm exists as a result of the defective product.
19      (3) The rule stated in subsection (1) shall apply although:
20        (a) The the seller has exercised all possible care in the
21   preparation and sale of his product,; and
22        (b) The the user or consumer has not bought the product
23   from or entered into any contractual relation with the seller.”
24
25   SECTION 8. Section 18-9-130(A)(1) of the 1976 Code is
26   amended to read:
27
28     “(A)(1) A notice of appeal from a judgment directing the
29   payment of money does not stay the execution of the judgment
30   unless the presiding judge before whom the judgment was obtained
31   grants a stay of execution. If the presiding judge grants a stay of
32   execution and requires a bond or other surety to guarantee the
33   payment of the judgment pending the appeal, the amount of the
34   bond or other surety must not exceed:
35        (a) the amount of the judgment or twenty-five million
36   dollars, whichever is less, for any business entity that employs
37   more than fifty persons and has gross revenues exceeding five
38   million dollars for the previous tax year; and
39        (b) the amount of the judgment or one million dollars,
40   whichever is less, for all other entities or individuals.”
41
42   SECTION 9. Section 33-6-320 of the 1976 Code is amended to
43   read:

     [350]                            21
 1
 2      “Section 33-6-220. (a) A purchaser from a corporation of its
 3   own shares is not liable to the corporation or its creditors with
 4   respect to the shares except to pay the consideration for which the
 5   shares were authorized to be issued (Section 33-6-210) or specified
 6   in the subscription agreement (Section 33-6-200).
 7      (b) Unless otherwise provided in the articles of incorporation, a
 8   shareholder of a corporation is not personally liable for the acts or
 9   debts of the corporation except that he may become personally
10   liable by reason of his own acts or conduct.
11      (c) A judgment against a corporation is a prerequisite to an
12   alter ego claim to pierce the corporate veil.”
13
14   SECTION 10. Section 33-44-303 of the 1976 Code is amended
15   to read:
16
17      “Section 33-44-303. (a) Except as otherwise provided in
18   subsection (c), the debts, obligations, and liabilities of a limited
19   liability company, whether arising in contract, tort, or otherwise,
20   are solely the debts, obligations, and liabilities of the company. A
21   member or manager is not personally liable for a debt, obligation,
22   or liability of the company solely by reason of being or acting as a
23   member or manager.
24      (b) The failure of a limited liability company to observe the
25   usual company formalities or requirements relating to the exercise
26   of its company powers or management of its business is not a
27   ground for imposing personal liability on the members or
28   managers for liabilities of the company.
29      (c) All or specified members of a limited liability company are
30   liable in their capacity as members for all or specified debts,
31   obligations, or liabilities of the company if:
32         (1) a provision to that effect is contained in the articles of
33   organization; and
34         (2) a member so liable has consented in writing to the
35   adoption of the provision or to be bound by the provision.
36      (d) Subject to and except for the provisions of subsection (c), a
37   judgment against a limited liability company is a prerequisite to an
38   alter ego claim to pierce the corporate veil.”
39
40   SECTION 11. A. Section 39-5-20 of the 1976 Code is
41   amended to read:
42


     [350]                            22
 1      “Section 39-5-20. (a) Unfair methods of competition and
 2   unfair or deceptive acts or practices in the conduct of any trade or
 3   commerce are hereby declared unlawful.
 4      (b) It is the intent of the legislature that in construing paragraph
 5   (a) of this section the courts will be guided by the interpretations
 6   given by the Federal Trade Commission and the Federal Courts to
 7   Section 5(a) (1) of the Federal Trade Commission Act (15 U.S.C.
 8   45(a)(1)), as from time to time amended.
 9      (c) This chapter shall not apply to actions or transactions
10   otherwise permitted or regulated by the Federal Trade Commission
11   or any other regulatory body or office acting under statutory
12   authority of this State or the United States.”
13
14   B.   Section 39-5-140(a) of the 1976 Code is amended to read:
15
16      “(a) Any person who suffers any ascertainable out-of-pocket
17   loss of money or property, real or personal, as a result of the use or
18   employment by another person of an unfair or deceptive method,
19   act or practice declared unlawful by Section 39-5-20 may bring an
20   action individually, but not in a representative capacity, to recover
21   actual damages. Any person seeking to recover damages under
22   this section shall be required to prove that the unfair or deceptive
23   method, act or practice caused him or her to enter into the
24   transaction that resulted in his or her damages. No award of
25   damages may be made without proof that the person seeking
26   damages suffered an actual out-of-pocket loss. For purposes of
27   this section, „out-of-pocket loss‟ means an amount of money equal
28   to the difference between the amount paid by the consumer for the
29   good or service and the actual market value of the good or service
30   that the consumer actually received. If the court finds that the use
31   or employment of the unfair or deceptive method, act or practice
32   was a willful or knowing violation of Section 39-5-20, the court
33   shall award three times the actual damages sustained and may
34   provide such other relief as it deems necessary or proper. Upon
35   the finding by the court of a violation of this article, the court shall
36   award to the person bringing such action under this section
37   reasonable attorney‟s fees and costs.”
38
39   SECTION 12. Section 56-5-6540(C) of the 1976 Code is
40   amended to read:
41
42     “(C) A violation of this article is not negligence per se or
43   contributory negligence, and is not admissible as evidence in a

     [350]                              23
 1   civil action. A violation of this article is not negligence per se or
 2   contributory negligence as a matter of law, but may be considered
 3   in a civil action as evidence of comparative negligence or as
 4   evidence of failure to mitigate damages and may serve to reduce
 5   liability based upon an apportionment of damages to the extent the
 6   injury was caused or enhanced by the failure to wear a seat belt.”
 7
 8   SECTION 13. If any section, subsection, item, subitem,
 9   paragraph, subparagraph, sentence, clause, phrase, or word of this
10   act is for any reason held to be unconstitutional or invalid, such
11   holding shall not affect the constitutionality or validity of the
12   remaining portions of this act, the General Assembly hereby
13   declaring that it would have passed this act, and each and every
14   section, subsection, item, subitem, paragraph, subparagraph,
15   sentence, clause, phrase, and word thereof, irrespective of the fact
16   that any one or more other sections, subsections, items, subitems,
17   paragraphs, subparagraphs, sentences, clauses, phrases, or words
18   hereof may be declared to be unconstitutional, invalid, or
19   otherwise ineffective.
20
21   SECTION 14. The repeal or amendment by this act of any law,
22   whether temporary or permanent or civil or criminal, does not
23   affect pending actions, rights, duties, or liabilities founded thereon,
24   or alter, discharge, release or extinguish any penalty, forfeiture, or
25   liability incurred under the repealed or amended law, unless the
26   repealed or amended provision shall so expressly provide. After
27   the effective date of this act, all laws repealed or amended by this
28   act must be taken and treated as remaining in full force and effect
29   for the purpose of sustaining any pending or vested right, civil
30   action, special proceeding, criminal prosecution, or appeal existing
31   as of the effective date of this act, and for the enforcement of
32   rights, duties, penalties, forfeitures, and liabilities as they stood
33   under the repealed or amended laws.
34
35   SECTION 15. This act takes effect July 1, 2009, and applies to
36   all causes of action arising on or after the effective date.
37                                 ----XX----
38




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