2003-2004 Bill 3744: South Carolina Economic Development Act, Citizens, and Small Business

South Carolina General Assembly

115th Session, 2003-2004

H. 3744

STATUS INFORMATION

General Bill

Sponsors: Reps. Sandifer, Kirsh, Richardson, Cato, Young, Battle, Barfield, Ceips, Chellis, Clark, Cooper, Davenport, Duncan, Edge, Gilham, Herbkersman, Huggins, Keegan, Leach, Littlejohn, Loftis, Mahaffey, McCraw, Owens, Perry, Phillips, Pinson, Rice, Scarborough, Simrill, D.C.Smith, J.R.Smith, Snow, Stille, Taylor, Toole, Tripp, Trotter, Vaughn, Viers, Walker, White, Whitmire, Witherspoon, Bingham, Townsend, Kennedy, Dantzler, Bailey, Koon, Frye, Umphlett, E.H.Pitts, G.R.Smith and Clemmons

Document Path: l:\council\bills\nbd\11338ac03.doc

Companion/Similar bill(s): 446

Introduced in the House on March 6, 2003

Introduced in the Senate on January 28, 2004

Last Amended on January 21, 2004

Currently residing in the Senate

Summary: "South Carolina Economic Development Act, Citizens, and Small Business Protection Act of 2003"; tort reform

HISTORY OF LEGISLATIVE ACTIONS

DateBodyAction Description with journal page number

3/6/2003HouseIntroduced and read first time HJ5

3/6/2003HouseReferred to Committee on JudiciaryHJ8

3/11/2003HouseMember(s) request name added as sponsor: Bingham, Townsend, Kennedy

3/19/2003HouseMember(s) request name added as sponsor: Dantzler, Bailey

3/25/2003HouseMember(s) request name added as sponsor: Koon, Frye

3/26/2003HouseMember(s) request name removed as sponsor: Hinson

3/27/2003HouseMember(s) request name added as sponsor: Umphlett

4/9/2003HouseMember(s) request name removed as sponsor: Martin

1/13/2004HouseMember(s) request name added as sponsor: E.H.Pitts

1/14/2004HouseCommittee report: Favorable with amendment JudiciaryHJ78

1/15/2004HouseObjection by Rep.Harrison, Bingham, Toole, Harrell and Cato HJ287

1/21/2004HouseMember(s) request name added as sponsor: G.R.Smith, Clemmons

1/21/2004HouseAmended HJ25

1/21/2004HouseRead second time HJ53

1/21/2004HouseRoll call Yeas79 Nays36 HJ53

1/22/2004HouseRead third time and sent to Senate HJ24

1/28/2004SenateIntroduced and read first time SJ11

1/28/2004SenateReferred to Committee on JudiciarySJ11

4/14/2004SenateCommittee report: Majority favorable with amend., minority unfavorable JudiciarySJ15

5/27/2004SenateRead second time SJ204

5/27/2004SenateOrdered to third reading with notice of amendments SJ204

VERSIONS OF THIS BILL

3/6/2003

1/14/2004

1/21/2004

4/14/2004

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

April 14, 2004

H.3744

Introduced by Reps. Sandifer, Kirsh, Richardson, Cato, Young, Battle, E.H.Pitts, Barfield, G.R.Smith, Clemmons, Ceips, Chellis, Clark, Cooper, Davenport, Duncan, Edge, Gilham, Herbkersman, Huggins, Keegan, Bingham, Leach, Littlejohn, Townsend, Kennedy, Loftis, Dantzler, Mahaffey, Bailey, Koon, McCraw, Frye, Owens, Perry, Umphlett, Phillips, Pinson, Rice, Scarborough, Simrill, D.C.Smith, J.R.Smith, Snow, Stille, Taylor, Toole, Tripp, Trotter, Vaughn, Viers, Walker, White, Whitmire and Witherspoon

S. Printed 4/14/04--S.

Read the first time January 28, 2004.

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (H.3744) to amend Section 15730, Code of Laws of South Carolina, 1976, relating to actions that must be tried in the county where the defendant resides, etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:

/SECTION1. Section 153640 of the 1976 Code is amended to read:

“Section 153640.(A)No actionsAn action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property mayshall not be brought more than thirteeneight years after substantial completion of such anthe improvement. For purposes of this section, an action based upon or arising out of the defective or unsafe condition of an improvement to real property includesis an action:

(1)an action to recover damages for breach of a contract to construct or repair an improvement to real property;

(2)an action to recover damages for the negligent construction or repair of an improvement to real property;

(3)an action to recover damages for personal injury, death, or damage to property;

(4)an action to recover damages for economic or monetary loss;

(5)an action in contract or in tort or otherwise;

(6)an action for contribution or indemnification for damages sustained on account of an action described in this subdivision;

(7)an action against a surety or guarantor of a defendant described in this section;

(8)an action brought against anya current or prior owner of the real property or improvement, or against any otheranother person having a current or prior interest in the real property or improvement;

(9)an action against ownersan owner or manufacturersa manufacturer of components, or against anya person furnishing materials, or against anya person who develops real property, or who performs or furnishes the design, plans, specifications, surveying, planning, supervision, testing, or observation of construction, or construction of an improvement to real property, or a repair to an improvement to real property.

(B)This section describessets forth an outside limitation of thirteeneight years after the substantial completion of the improvement, within which normal statutes of limitations continue to run.

(C)AnyA building permit for the construction of an improvement to real property shallmust contain in bold type notice to the owner or possessor of the property of his rights under this section to contract for a guarantee of the structure being free from defective or unsafe conditions beyond thirteeneight years after substantial completion of the improvement. The Department of Consumer Affairs shall publish in conspicuous places the right of anyan owner or a possessor to contract for such extended liability under this section. Nothing in this section shall prohibit anyprohibits a person from entering into any contractual agreement prior to the substantial completion of the improvement which extends any guarantee of a structure or component being free from defective or unsafe conditions beyond thirteeneight years after substantial completion of the improvement or component.”

SECTION2. Section 15730 of the 1976 Code is amended to read:

“Section 15730.(A)As used in this section:

(1)‘Domestic corporation’ means a ‘domestic corporation’ as defined in Section 331400.

(2)‘Domestic limited partnership’ means a ‘domestic limited partnership’ as defined in Section 334220.

(3)‘Domestic limited liability company’ means a ‘domestic limited liability partnership’ as defined in Section 33411110 with its principal place of business within this State.

(4)‘Domestic limited liability partnership’ means a ‘domestic limited liability partnership’ as defined in Section 33411110 with its principal place of business within this State.

(5)‘Foreign corporation’ means a ‘foreign corporation’ as defined in Section 331400.

(6)‘Foreign limited partnership’ means a ‘foreign limited partnership’ as defined in Section 334220.

(7)‘Foreign limited liability company’ means a ‘foreign limited liability partnership’ as defined in Section 33411150 with its principal place of business outside this State.

(8)‘Foreign limited liability partnership’ means a ‘foreign limited liability partnership’ as defined in Section 33411150 with its principal place of business outside this State.

(9)‘Nonresident individual’ means a person who is not domiciled in this State.

(10)‘Principal place of business’ means any of the following:

(a)the corporation’s headquarters within this State from which the corporation’s officers direct, control, or coordinate its activities within this State;

(b)the county in which the largest percentage of the corporation’s distribution activity in this State takes place;

(c)the county in which the largest percentage of the corporation’s manufacturing activity in this State takes place;

(d)the county in which the largest percentage of the corporation’s sales activity in this State takes place; or

(e)the county in which the largest percentage of the corporation’s service activity in this State takes place.

(11)‘Resident individual’ means a person who is domiciled in this State.

(B)In all other cases not provided for in Sections 15710, 15720, or 1578100, and except as provided in Section 157100(C), the action shallmust be tried in the county in which the defendant resides at the time of the commencement of the actionit properly may be brought and tried against the defendant according to the provisions of this section. If there beis more than one defendant,then the action may be tried in any county in which one or more of the defendants to such action resides at the time of the commencement of the action properly may be maintained against one of the defendants pursuant to this section. If none of the parties shall reside in the State the action may be tried in any county which the plaintiff shall designate in his complaint. This section is subject however to the power of the court to change the place of trial in certain cases as provided by law.

(C)A civil action tried pursuant to this section against a resident individual defendant must be brought and tried in the county in which the:

(1)defendant resides at the time the cause of action arose; or

(2)most substantial part of the alleged act or omission giving rise to the cause of action occurred;

(D)A civil action tried pursuant to this section against a nonresident individual defendant must be brought and tried in the county in which the:

(1)most substantial part of the alleged act or omission giving rise to the cause of action occurred; or

(2)plaintiff resides, or if the plaintiff is a domestic corporation, domestic limited partnership, domestic limited liability company, domestic limited liability partnership, foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership, at any of its principal places of business at the time the cause of action arose.

(E)A civil action tried pursuant to this section against a domestic corporation, domestic limited partnership, domestic limited liability company, or domestic limited liability partnership, must be brought and tried in the county in which the:

(1)corporation, limited partnership, limited liability company, or limited liability partnership has any of its principal places of business at the time the cause of action arose; or

(2)most substantial part of the alleged act or omission giving rise to the cause of action occurred.

(F)A civil action tried pursuant to this section against aforeign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership must be brought and tried in the county in which the:

(1)most substantial part of the alleged act or omission giving rise to the cause of action occurred; or

(3)foreign corporation, foreign limited partnership, foreign limited liability company, or foreign limited liability partnership has any of its principal places of business at the time the cause of action arose;

(G)Owning property and transacting business in a county is insufficient in and of itself to establish the principal place of business for a corporation for purposes of venue.”

SECTION3. Section 157100 of the 1976 Code is amended to read:

“Section 157100.(A)The court may change the place of trial in the following casesif:

(1)When the county designated for that purpose in the complaint is not the proper county;

(2)When there is reason to believe that a fair and impartial trial cannot be had thereinthere; andor

(3)When the convenience of witnesses and the ends of justice would be promoted by the change.

(B)When the place of trial is changed, all other proceedings shallmust be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties in writing duly filed or by order of the court. And the papers shallThe pleadings must be filed or transferred accordingly.

(C)If the court changes the place of trial pursuant to the provisions of subsection (A)(3), the action is not subject to the provisions of Section 15730.”

SECTION4. Title 15 of the 1976 Code is amended by adding:

“CHAPTER 32

Damages

Article 1

Noneconomic Damage Awards

Section 153210.This article may be cited as the ‘South Carolina Noneconomic Damage Awards Act of 2004’.

Section 153220.As used in this chapter, unless the context clearly requires otherwise:

(1)‘Claimant’ means the person suffering personal injury.

(2)‘Economic damages’ means pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other monetary losses.

(3)‘Noneconomic damages’ means nonpecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.

(4)‘Personal injury’ means injuries to the person including, but not limited to, bodily injuries, mental distress or suffering, loss of wages, loss of services, loss of consortium, and other noneconomic damages and actual economic damages.

(5)‘Personal injury action’ means an action for personal injury, including a wrongful death action pursuant to Sections 155110 through 155160 and a survival action pursuant to Section 15590.

Section 153230.(A)In a medical malpractice personal injury action, the prevailing plaintiff may be awarded compensation for:

(1)economic damages suffered by the claimant; and

(2)noneconomic damages suffered by the claimant not to exceed three hundred thousand dollars, except as provided in subsections (C) and (D).

(B)The provisions of subsection (A)(2) shall not be made known to the jury through any means, including voir dire, the introduction of evidence, argument of counsel, or instructions to the jury.

(C)The limitations of subsection (A)(2) do not apply to actions in which the plaintiff has suffered the following conditions:

(1)Brain injury;

(2)H.I.V. or A.I.D.S;

(3)Loss of limb;

(4)Loss of an organ;

(5)Loss of sight or hearing;

(6)Paralysis;

(7)Serious scars and disfigurement;

(8)Severe and permanent neurological injury.

(D)At the end of each calendar year, the State Budget and Control Board, Board of Economic Advisors, must determine the increase or decrease in the ratio of the Consumer Price Index to the index as of December 31 of the previous year, and the limitation on compensation for noneconomic damages pursuant to subsection (A)(2) must be increased or decreased accordingly. As soon as practicable after this adjustment is calculated, the Director of the State Budget and Control Board shall submit the revised limitation on compensation to The State Register for publication pursuant to Section 12340(2), and the revised limitation becomes effective upon publication in The State Register. For purposes of this subsection, ‘Consumer Price Index’ means the Consumer Price Index for All Urban Consumers as published by the United States Department of Labor, Bureau of Labor Statistics.

(E)For purposes of subsection (C), the following definitions apply:

(1)‘Brain injury’ means physical injury to the brain, resulting in loss of function, which is permanent, quantifiable, and verifiable by objective medical testing.

(2)‘H.I.V. or A.I.D.S.’ means infection with human immunodeficiency virus (H.I.V.) or Acquired Immune Deficiency Syndrome disease (A.I.D.S.).

(3)‘Loss of limb’ means the complete severance and loss of a hand, arm, leg, or foot.

(4)‘Loss of an organ’ means the loss of effective function of an organ essential for life.

(5)‘Loss of sight or hearing’ means a complete, permanent, and noncorrectable loss of sight or hearing as defined in the American Medical Association Guides to Permanent Impairment.

(6)‘Paralysis’ means quadriplegia or paraplegia.

(7)‘Serious scars and disfigurement’ means seriously disfiguring facial scars, or scars covering more than twentyfive percent of the body.

(8)‘Neurological injury’ means physical injury to a nerve which is permanent, quantifiable, and verifiable by objective medical testing and which injury causes a permanent and complete loss of use of a hand, arm, leg, or foot.

Section 153240.The provisions of this article do not affect any right, privilege, or provision of the South Carolina Tort Claims Act pursuant to Chapter 78, Title 15.

Section 153250.As used in this section, ‘medical malpractice’ means doing that which the reasonably prudent health care provider would not do or not doing that which the reasonably prudent health care provider would do under the same or similar circumstances.”

SECTION5. Title 15 of the 1976 Code is amended by adding:

“Article 3

Punitive Damages

Section 1532310.As used in this article:

(1)‘Claimant’ means a party to a civil action, including a plaintiff, counterclaimant, crossclaimant, or thirdparty plaintiff, seeking the recovery of punitive damages.

(2)‘Compensatory damages’ means pecuniary damages arising from such things as medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other monetary losses, and nonpecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.

(3)‘Defendant’ means a party to a civil action, including a counter defendant, crossdefendant, or thirdparty defendant, from whom a claimant seeks recovery of punitive damages.

(4)‘Punitive damages’ means damages, other than compensatory damages, which are awarded pursuant to the provisions in Section 1532320. For purposes of this article, ‘punitive damages’ does not include treble damages, penalties, or statutory damages awarded pursuant to a statutory cause of action.

Section 1532320.Subject to the provisions of this article, punitive damages may be awarded in a civil action to punish a defendant or to deter repetition of similar acts.

Section 1532330.(A)This article applies to every claim for punitive damages regardless of whether the claim for relief is based upon a common law right of action or based in equity. In an action subject to this article, in whole or in part, the provisions of this article prevail over another provision of law to the contrary.

(B)The provisions of this article do not apply to actions brought under the South Carolina Tort Claims Act, as set forth in Chapter 78 of Title 15.

Section 1532340.(A)A civil action tried before a jury and seeking punitive damages must be conducted in a bifurcated trial. Each phase of the trial must be conducted before the same jury.

(B)In the first phase of the trial, the jury shall:

(1)determine and assign liability among the parties;

(2)award compensatory damages against the liable parties; and

(3)determine whether the claimant has shown by clear and convincing evidence that the conduct of the liable parties was wilful, wanton, reckless, or malicious.

(C)If a jury has made a determination that the conduct of the liable parties was wilful, wanton, reckless, or malicious, a second phase of the trial must be held in which the jury determines the amount of punitive damages to be awarded. In determining the amount of punitive damages, the jury shall consider: