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NAMIC 2005 Survey of New State Insurance Laws Summary and Analysis

TORT REFORM

Thirty-two states approved more than 60 new laws and two resolutions in 2005 that relate to some of the fundamentally important tenets of tort reform NAMIC continues to advocate. The specific focus of these new measures fall into the following categories: medical malpractice, asbestos litigation reform, expert witnesses, class action, juries, contractors, and miscellaneous other tort reform related laws. Two states, Missouri and South Carolina, enacted comprehensive tort reform legislation. A brief summary description of each is provided below.

Medical Malpractice

Alaska passed legislation (SB 67) that limits damages in medical malpractice claims. Connecticut SB 1052 affects medical malpractice-related civil litigation impacting contingency fees, requisites to filing medical malpractice actions, offer of judgment, interest on offers of compromise and non-economic damage claims. Delaware HR 17 continues the Medical Liability Insurance Task Force and requires the panel to update the General Assembly on progress of implementing prior recommendations. Delaware HB 133 standardized the method by which medical negligence claims against health care providers are reported to the Insurance Commissioner. Also, jury verdicts are to be reported to the Insurance Department.

Georgia SB 3 set caps on non-economic damages in medical malpractice claims. Illinois SB 475 places caps awards on damages, setting a limit on non-economic damages. The legislation also includes a provision requiring hearings for rate approval before medical liability carriers can change range. Iowa HR 50 provides for an interim study of the costs of professional liability insurance for health care providers. The report was to be submitted on or before 1/15/06.

Louisiana HB 485 provides for the confidentiality of risk management information in medical malpractice cases. SB 184 provides avenues for notification of medical review panels. Maine SP 476 establishes limitations on medical malpractice liability by prevent the admissibility of expressions of sympathy or apology by health care providers to patients. Montana enacted a similar law (Montana HB 24).

Mississippi HB 369 reenacts provisions within the Code providing for the administration of the Medical Malpractice Insurance Availability Plan by the Tort Claims Board. Montana SB 21 provides that damages may be awarded against a health care provider in a malpractice claim if a negligent act reduces a patient's changes of recovery and contributes to death, shorter survival, no recovery, or a generally lesser quality of recovery. Montana HB 331 provides the mechanism for establishing a medical malpractice joint underwriting association, provided the Insurance Commissioner has first conducted an investigatory process before such association is created.

South Carolina SB 83 creates several medical malpractice reforms. South Dakota HB 1104 limits damages that may be awarded against podiatrists in medical malpractice actions. Wyoming SF 83 extends immunity from civil prosecution to physicians serving as medical directors of ambulance services, to hospitals and hospital employees for clinical training activities for emergency medical service classes, and to students participating in emergency medical service training.

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Asbestos Litigation Reform

Florida HB 1019 enacted the "Asbestos and Silica Compensation Fairness Act of 2005", which requires plaintiffs to make a prima facie showing of actual physical impairment and does not require plaintiffs to make any prima facie showing for mesothelioma claims. Florida SB 2228 limits the liability of successor corporations that have assumed asbestos-related liabilities as the result of a merger or consolidation that occurred prior to January 1, 1972. Georgia HB 416 includes a limitation period for the filing of an asbestos and silica claim, dismissal of pending claims under certain conditions, and creating general rules applicable to new filings. Texas SB 15 establishes medical criteria that a claimant must meet to pursue a lawsuit involving asbestos or silica exposure.

Maine SP 20 makes all persons engaging in asbestos abatement, except those related to disposal undertaken at licensed disposal sites, subject to licensing and certification requirements.

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Expert Witnesses

Arizona SB 1036 requires expert witnesses in medical malpractice cases to be licensed health care professionals and makes certain statements by health care professionals inadmissible as evidence. Montana HB 64 establishes mandatory professional qualifications for expert witnesses in medical malpractice cases. North Dakota SB 2199 provides that any professional negligence case initiated against certain health care providers must contain a statement from an expert witness supporting such claim. South Dakota HB 1039 prohibits insurance producers from influencing witnesses to decline to testify or to testify falsely or withhold any testimony, information, document, or thing in any examination, investigation or hearing conducted by the Insurance Division.

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Class Action Litigation

Georgia SB 19 provides for procedures, conditions, and limitations on certification of class actions. North Carolina SB 911 provides for the distribution of unpaid residuals in class action litigation.

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Comprehensive Legislation

The Missouri legislature passed HB 393, a comprehensive tort reform measure that includes limitations of punitive damages; lowers the cap on non-economic damages; strengthens venue rules; eliminates joint and several liability; and specifies the rate of interest calculations for pre-and post-judgment claims. The South Carolina legislature passed HB 3008, the South Carolina Economic Development, Citizens, and Small Business Protection Act of 2005, which includes a number of civil justice reforms, including reduction of the statute of repose from 13 to 8 years for actions regarding improvements to real property; venue reforms; limitation of frivolous lawsuits; and modification of the use of joint and several liability.

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Juries

Maine SP 63 outlines procedures for maintaining jury confidentiality. In addition to adopting changes to arbitration, Nevada AB 468 amends provisions governing juries. Ohio SB 71 establishes changes in penalties for failure to attend jury service and failure to serve as a juror.

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Contractors

California AB 758 provides that all agreements affecting any residential construction contract that purport to indemnify or require a defense duty of the builder by a subcontractor against liability for claims of construction defects or other injury to property arising from the negligence of the builder or the builder's agents are voice and unenforceable. Georgia HB 307 provides that a contractor's fulfillment of an offer for settlement or repair does not create insurance coverage or affect the parties' rights under a contractor's liability policy. Kentucky HB 449 defines "construction services contract", establishing that indemnification clauses purporting to indemnify or hold harmless another person from that person's own negligence or from the negligence of his or her contractors, agents, or employees are void and unenforceable. Missouri passed SB 168, a "right-to-repair" bill that addresses disputes between homeowners and contractors arising out of construction defects. Ohio HB 175, in addition to establishing a state residential building code, makes other changes in the laws governing residential construction, along with the "right to cure" procedure under which a residential contractor may cure a defect prior to an owner commencing arbitration proceedings or a civil action.

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Miscellaneous Tort Reform Laws Enacted in 2005

Connecticut (SB 256) and New Hampshire (HB 619) enacted legislation relating to ski area operations. Connecticut SB 1121 increases the maximum amount of money damages in a small claims action from $3500 to $5000. Connecticut SB 795 protects a purchaser of land under certain conditions from liability for pollution on such land that existed or occurred prior to purchase. Connecticut HB 6286 broadens the scope of immunity from liability for negligence for the emergency use of cartridge injectors under the state's Good Samaritan Law and to require before or after school programs, day camps and day care facilities to provide staff trained in the use of cartridge injectors.

Florida HB 135 provides immunity to entities that own or maintain streetlights, security lights or other outdoor area lights in any civil damage actions for personal injury, wrongful death, or property damage affected or caused by the malfunction or failure of such lights, unless the provider failed to comply with certain maintenance requirements specified in the legislation. Florida HB 1931 provides that if a person slips and falls in a retail business, the injured person must prove that the business knew about the dangerous condition and did not take proper action to remedy the situation.

Georgia SB 139 provides for limited liability for certain liquefied petroleum gas providers.

Idaho HB 49 clarifies existing language addressing the scope of the state's responsibility to provide a legal defense to its employees when they are sued in their personal capacity for actions related to their jobs. Indiana SB 54 provides immunity from civil liability for certain health care workers who provide certain services without compensation. Maine HP 287 provides a limitation on tort liability of ambulance services and prohibits anyone from requiring an ambulance service to maintain liability insurance coverage in excess of that limit. Maine HP 655 amends the Maine Tort Claims Act by providing that discretionary function immunity does not apply to the negligent operation of a motor vehicle that is directly involved in a collision.

Minnesota HF 1555 classifies volunteers who assist local political subdivisions during an emergency declared by the Governor as an employee of that subdivision for purposes of workers compensation and tort claim defense. Minnesota HF 221 / SF 196 adds rock climbing and cave exploring to the list of recreational purposes for landowners that have immunity under the state's recreational land use liability immunity law.

Mississippi SB 2094 provides that the required payment by the insurer in the event of a loss under a creditor-placed insurance policy shall be reduced by any recovery from a third party. North Dakota HB 1188 establishes a three-year statute of limitations on all real estate related breach of duty actions. North Dakota HB 1241 limits liability for claims related to weight gain or obesity. North Dakota SB 2302 amends provisions governing the calculation of post-judgment interest.

Texas enacted three miscellaneous tort reform bills. HB 755 amends existing provisions pertaining to the appropriate forum for the initiative of a civil cause of action. HB 1294 authorizes an appeal of an interlocutory trial court order. SB 890 establishes recovery limitations when one or more defendants settle prior to trial. Utah SB 10 specifies conditions for allocating fault to non-parties in a lawsuit.

Virginia HB 2118 relates to blood alcohol tests in civil cases, including protections for confidentiality of medical records and treatment and against civil liability for those taking blood and conducting tests extend from criminal to also include civil proceedings.

Virginia HB 1621 increases the claims amount for District Court jurisdiction. HB 2209 pertains to procedures to be used to introduce medical evidence, when a personal injury case is removed from General District Court to Circuit Court.

Washington HB 1054 adopts the Revised Uniform Arbitration Act. Washington HB 1625 provides immunity from civil and criminal liability as a result of disclosure of information about a former or current employee to a prospective employer at the specific request of that employee.

West Virginia SB 417 eliminates third party bad faith lawsuits, and expands powers for the office of Consumer Advocacy. SB 421 deals with joint and several liability, SB 456 relates to cure offer from merchant to seller to consumer, and SB 744 clarifies the criteria for an employee to sustain a lawsuit for intentional injury. Wyoming SF 142 revises criteria for jurisdictional limits based on dollar value of claims.

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Also Inside This Summary

The following provides a brief summary and analysis of each of the notable key issue trends that emerge from NAMIC's 2005 listing of new laws.

Search for an Issue Overview

Motor Vehicle Insurance

Workers' Compensation

Identify Theft

Catastrophe Related Legislation

Military Personnel Insurance Related Legislation

Additional Emerging New Law Issue Trends