SUMMARY--Makes various changes concerning tort actions. (BDR 3-35)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to tort actions; requiring the reduction of specified collateral benefits from an award of damages in certain actions; limiting noneconomic damage awards in certain actions; providing for periodic payments of future damages in certain actions; limiting attorney's fees in certain actions; providing a statute of limitations for actions for product liability; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1. Chapter 42 of NRS is hereby amended by adding thereto the provisions set forth as sections 2, 3 and 4 of this act.
Sec. 2. 1. In an action for damages for personal injury or wrongful death, the court shall, before the entry of judgment, hold a separate hearing to determine if the plaintiff, as the result of the personal injury, has received a benefit from a collateral source. If the court determines that the plaintiff has received a benefit from a collateral source, the court shall reduce the amount of damages, if any, awarded in the action by the amount of the benefit.
2. As used in this section and except as otherwise provided in subsection 3, "benefit from a collateral source" means any money, service or other benefit that is paid, provided or reimbursed or is reasonably likely to be paid, provided or reimbursed to the plaintiff for personal injury or wrongful death pursuant to:
(a) A state or federal act that provides benefits for sickness, physical injury, dental injury, emotional injury, disability, accidents, loss of earnings or workers' compensation;
(b) A policy of insurance that provides benefits for sickness, physical injury, dental injury, emotional injury, disability, accidents or loss of earnings;
(c) A contract or agreement of any group, organization, partnership or corporation that provides benefits for sickness, physical injury, dental injury, emotional injury, disability, accidents or loss of earnings; or
(d) Any other publicly or privately funded program that provides benefits for sickness, physical injury, dental injury, emotional injury, disability, accidents or loss of earnings.
3. A benefit from a collateral source does not include a benefit received by the plaintiff pursuant to subsection 2 if:
(a) The provider of the benefit is entitled to recover any amount of the benefit from the plaintiff; or
(b) The provider of the benefit is subrogated to the rights of the plaintiff and the provider exercises the right of subrogation by serving a notice of lien on the plaintiff before the settlement of or the entry of judgment in the action.
4. The plaintiff shall provide notice of the plaintiff's action for damages for personal injury or wrongful death to any statutory holder of a lien.
Sec. 3. 1. In an action for damages for personal injury or wrongful death that arises on or after October 1, 1997, the trier of fact shall itemize, in the verdict, the award of damages to reflect the monetary amount intended for:
(a) Past expenses for medical treatment, care or custody;
(b) Future expenses for medical treatment, care or custody;
(c) Past loss of earnings;
(d) Future loss of earnings;
(e) Noneconomic damages; and
(f) Other damages.
2. Except as otherwise provided in this section and in NRS 41.035, in an action for damages for personal injury or wrongful death, a judgment for noneconomic damages must not exceed $250,000.
3. If the action is tried to a jury, the court or a party to the action shall not instruct or otherwise advise the jury as to the limitation on the amount of an award of noneconomic damages prescribed in subsection 2.
4. The limitation on the amount of an award of noneconomic damages must not apply to a cause of action arising out of:
(a) Willful or reckless misconduct; or
(b) An act or omission to act constituting the commission of a felony.
5. As used in this section, "noneconomic damages" means damages for pain and suffering, emotional distress and loss of consortium or companionship. The term does not include exemplary or punitive damages.
Sec. 4. 1. If the trier of fact in an action for damages for personal injury or wrongful death awards the plaintiff future economic damages, the defendant shall pay the award of future economic damages, at the election of the plaintiff:
(a) In a lump sum payment that has been reduced to its present value as determined by the trier of fact and approved by the court; or
(b) In an annuity or other appropriate financial instrument purchased by the defendant to provide periodic payments to the plaintiff. The court shall not reduce an award of future economic damages to its present value if the plaintiff elects to receive the award pursuant to this paragraph.
2. If the plaintiff elects to receive an award of future economic damages in an annuity or other appropriate financial instrument that provides periodic payments:
(a) The plaintiff shall select the provider of the annuity or other appropriate financial instrument.
(b) The court shall determine the duration of the period during which the periodic payments are to be received.
(c) Each party, before the entry of judgment, shall submit to the court a plan specifying the person who is to be the recipient of the periodic payments, the schedule for the periodic payments and the amount of each periodic payment.
(d) After review of the plans, the court shall specify in its judgment:
(1) The provider of the annuity or other appropriate financial instrument;
(2) The duration of the period during which the periodic payments are to be received;
(3) The person who is to be the recipient of the periodic payments;
(4) The schedule for the periodic payments; and
(5) The amount of each periodic payment.
(e) The court shall ensure that the total amount of the periodic payments is equal to the total amount of the future economic damages awarded by the trier of fact and approved by the court.
(f) The defendant or the defendant's insurer shall fund the annuity or other appropriate financial instrument in full.
(g) Upon purchase of the annuity or other appropriate financial instrument by the defendant or the defendant's insurer, the plaintiff shall:
(1) Execute a satisfaction of judgment or a stipulation for dismissal of the claim with prejudice; and
(2) Release forever the defendant and the defendant's insurer, if any, from any obligation to make periodic payments pursuant to the award.
3. If the plaintiff dies before the final periodic payment of the award is made:
(a) The unpaid balance of the award for loss of future earnings reverts to the estate of the plaintiff; and
(b) The unpaid balance of the award for future expenses for medical treatment, care or custody reverts to the defendant or the defendant's insurer.
4. As used in this section, "future economic damages" includes damages for loss of future earnings and for future expenses for medical treatment, care or custody.
Sec. 5. NRS 42.020 is hereby amended to read as follows:
42.020 1. [Except as otherwise provided in subsection 2, in any] In an action for damages for personal injury or wrongful death caused by medical malpractice, the court shall, at the time of making the reduction required pursuant to section 2 of this act, also reduce the amount of damages, if any, awarded in the action [must be reduced] by the amount of any prior payment made by or on behalf of the [provider of health care against whom the action is brought] defendant to the injured person or to the claimant to meet reasonable expenses [of] for medical treatment, care [,] or custody, reasonable expenses for other essential goods or services , or reasonable living expenses.
2. [In any action described in subsection 1 in which liability for medical malpractice is established or admitted, the court shall, before the entry of judgment, hold a separate hearing to determine if any expenses incurred by the claimant for medical care, loss of income or other financial loss have been paid or reimbursed as a benefit from a collateral source. If the court determines that a claimant has received such a benefit, the court shall reduce the amount of damages, if any, awarded in the action by the amount of the benefit. The amount so reduced must not include any amount for which there is a right of subrogation to the rights of the claimant if the right of subrogation is exercised by serving a notice of lien on the claimant before the settlement of or the entry of judgment in the action. Notice of the action must be provided by the claimant to any statutory holder of a lien.
3. If future economic damages are awarded in an action for medical malpractice, the award must be paid, at the election of the claimant:
(a) In a lump sum which has been reduced to its present value as determined by the trier of fact and approved by the court; or
(b) Subject to the provisions of subsection 5, by an annuity purchased to provide periodic payments.
As used in this subsection, "future economic damages" includes damages for future medical treatment, care or custody, and loss of future earnings.
4. If the claimant elects to receive periodic payments pursuant to paragraph (b) of subsection 3, the award must not be reduced to its present value. The amount of the periodic payments must be equal to the total amount of all future damages awarded by the trier of fact and approved by the court. The period for which the periodic payments must be made must be determined by the trier of fact and approved by the court. Before the entry of judgment, each party shall submit to the court a plan specifying the recipient of the payments, the amount of the payments and a schedule of periodic payments for the award. Upon receipt and review of the plans, the court shall specify in its judgment rendered in the action the recipient of the payments, the amount of the payments and a schedule of payments for the award.
5. If an annuity is purchased pursuant to paragraph (b) of subsection 3, the claimant shall select the provider of the annuity. Upon purchase of the annuity, the claimant shall:
(a) Execute a satisfaction of judgment or a stipulation for dismissal of the claim with prejudice; and
(b) Release forever the defendant and his insurer, if any, from any obligation to make periodic payments pursuant to the award.
6.] As used in this section [:
(a) "Benefit from a collateral source" means any money, service or other benefit which is paid or provided or is reasonably likely to be paid or provided to a claimant for personal injury or wrongful death pursuant to:
(1) A state or federal act which provides benefits for sickness, disability, accidents, loss of income or workers' compensation;
(2) A policy of insurance which provides health benefits or coverage for loss of income;
(3) A contract of any group, organization, partnership or corporation which provides, pays or reimburses the cost of medical, hospital or dental benefits or benefits for loss of income; or
(4) Any other publicly or privately funded program which provides such benefits.
(b) "Medical] , "medical malpractice" has the meaning ascribed to it in NRS 41A.009.
Sec. 6. Chapter 7 of NRS is hereby amended by adding thereto a new section to read as follows:
1. An attorney shall not contract for or collect a fee contingent on the amount of recovery for representing a person seeking damages in connection with an action in tort in excess of the following limits:
(a) Forty percent of the first $50,000 recovered.
(b) Thirty-three and one-third percent of the next $50,000 recovered.
(c) Twenty-five percent of the next $500,000 recovered.
(d) Fifteen percent of the amount of recovery that exceeds $600,000.
2. The limitations of subsection 1 apply to all forms of recovery, including, but not limited to, settlement, arbitration or judgment.
3. For the purposes of this section, "recovered" means the net sum recovered by the plaintiff after deducting any disbursements or costs incurred in connection with the prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and general and administrative expenses incurred by the office of the attorney are not deductible disbursements or costs.
Sec. 7. Chapter 11 of NRS is hereby amended by adding thereto a new section to read as follows:
1. In addition to the limitations imposed pursuant to NRS 11.190, an action for product liability must be commenced:
(a) Within 6 years after the date of the initial purchase of the product; or
(b) Within 10 years after the date of the manufacture of the product,
whichever is later.
2. As used in this section, "product liability" means liability for damages because of personal injury, death, emotional harm, consequential economic damage or damage to property, including damages resulting from the loss of use of property, arising out of the manufacture, design, importation, distribution, packaging, labeling, lease or sale of a product.