Assembly Bill No. 9–Assemblyman Marvel

 

Prefiled January 27, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes concerning tort actions. (BDR 3‑134)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to tort actions; requiring that damages awarded in certain actions be reduced by the amount of any benefit received from a collateral source; limiting the amount of noneconomic damages that may be awarded in certain actions; providing for periodic payments of future economic damages in certain actions; limiting the fees of attorney in certain actions; extending the period of limitations for commencing an action for product liability;  and providing other matters properly relating thereto.

 

1-1  Section 1. NRS 41A.031 is hereby amended to read as

1-2  follows:

1-3  41A.031  1.  Except as otherwise provided in subsection 2 and

1-4  except as further limited in subsection 3, in an action for damages

1-5  for medical malpractice or dental malpractice[,] where the alleged

1-6  malpractice occurred on or after October 1, 2002, but before

1-7  October 1, 2003, the noneconomic damages awarded to each

1-8  plaintiff from each defendant must not exceed $350,000.

1-9  2.  In an action for damages for medical malpractice or dental

1-10  malpractice[,] where the alleged malpractice occurred on or after

1-11  October 1, 2002, but before October 1, 2003, the limitation on

1-12  noneconomic damages set forth in subsection 1 does not apply in the

1-13  following circumstances and types of cases:

1-14      (a) A case in which the conduct of the defendant is determined

1-15  to constitute gross malpractice; or

2-1  (b) A case in which, following return of a verdict by the jury or

2-2  a finding of damages in a bench trial, the court determines, by clear

2-3  and convincing evidence admitted at trial, that an award in excess of

2-4  $350,000 for noneconomic damages is justified because of

2-5  exceptional circumstances.

2-6  3.  Except as otherwise provided in subsection 4, in an action

2-7  for damages for medical malpractice or dental malpractice[,] where

2-8  the alleged malpractice occurred on or after October 1, 2002, but

2-9  before October 1, 2003, in the circumstances and types of cases

2-10  described in subsections 1 and 2, the noneconomic damages

2-11  awarded to each plaintiff from each defendant must not exceed the

2-12  amount of money remaining under the professional liability

2-13  insurance policy limit covering the defendant after subtracting the

2-14  economic damages awarded to that plaintiff. Irrespective of the

2-15  number of plaintiffs in the action, in no event may any single

2-16  defendant be liable to the plaintiffs in the aggregate in excess of the

2-17  professional liability insurance policy limit covering that defendant.

2-18      4.  The limitation set forth in subsection 3 does not apply in an

2-19  action for damages for medical malpractice or dental malpractice

2-20  unless the defendant was covered by professional liability insurance

2-21  at the time of the occurrence of the alleged malpractice and on the

2-22  date on which the insurer receives notice of the claim, in an amount

2-23  of:

2-24      (a) Not less than $1,000,000 per occurrence; and

2-25      (b) Not less than $3,000,000 in the aggregate.

2-26      5.  This section is not intended to limit the responsibility of any

2-27  defendant for the total economic damages awarded.

2-28      6.  For the purposes of this section, “gross malpractice” means

2-29  failure to exercise the required degree of care, skill or knowledge

2-30  that amounts to:

2-31      (a) A conscious indifference to the consequences which may

2-32  result from the gross malpractice; and

2-33      (b) A disregard for and indifference to the safety and welfare of

2-34  the patient.

2-35      Sec. 2.  Chapter 42 of NRS is hereby amended by adding

2-36  thereto the provisions set forth as sections 3, 4 and 5 of this act.

2-37      Sec. 3.  1.  In an action for damages for personal injury or

2-38  wrongful death in which the liability of the defendant is

2-39  established or admitted, the court shall, before the entry of

2-40  judgment, hold a separate hearing to determine if the plaintiff, as

2-41  the result of the personal injury or wrongful death, has received a

2-42  benefit from a collateral source. If the court determines that the

2-43  plaintiff has received a benefit from a collateral source, the court

2-44  shall reduce the amount of damages, if any, awarded in the action

2-45  by the amount of the benefit.

3-1  2.  As used in this section and except as otherwise provided in

3-2  subsection 3, “benefit from a collateral source” means any money,

3-3  service or other benefit that is paid, provided or reimbursed, or is

3-4  reasonably likely to be paid, provided or reimbursed, to the

3-5  plaintiff for the personal injury or wrongful death pursuant to:

3-6  (a) A state or federal act;

3-7  (b) A policy of insurance;

3-8  (c) A contract or agreement of any group, organization,

3-9  partnership or corporation; or

3-10      (d) Any other publicly or privately funded program,

3-11  that provides benefits for sickness, physical injury, dental injury,

3-12  emotional injury, disability, accidents, loss of earnings or workers’

3-13  compensation.

3-14      3.  A benefit from a collateral source does not include a

3-15  benefit that is received by the plaintiff pursuant to subsection 2 to

3-16  the extent that the provider of the benefit:

3-17      (a) Is entitled to recover the benefit from the plaintiff; or

3-18      (b) Is subrogated to the rights of the plaintiff, if the right of

3-19  subrogation is exercised by serving a notice of lien on the plaintiff

3-20  before the settlement of or the entry of judgment in the action. The

3-21  plaintiff shall provide notice of the commencement of the action to

3-22  each provider of benefits that holds a lien provided by statute.

3-23      Sec. 4.  1.  In an action for damages for personal injury or

3-24  wrongful death, the trier of fact shall itemize, in the verdict, the

3-25  award of damages to reflect the monetary amount intended for:

3-26      (a) Past expenses for medical treatment, care or custody;

3-27      (b) Future expenses for medical treatment, care or custody;

3-28      (c) Past loss of earnings;

3-29      (d) Future loss of earnings;

3-30      (e) Noneconomic damages; and

3-31      (f) Other damages.

3-32      2.  Except as otherwise provided in this section and NRS

3-33  41.035 and 41.503, in an action for damages for personal injury or

3-34  wrongful death, a judgment for noneconomic damages must not

3-35  exceed $250,000.

3-36      3.  If the action is tried before a jury, the court or a party to

3-37  the action shall not instruct or otherwise advise the jury

3-38  concerning the limitation on noneconomic damages set forth in

3-39  subsection 2.

3-40      4.  The limitation on noneconomic damages set forth in

3-41  subsection 2 does not apply to a cause of action that arises from:

3-42      (a) Willful or reckless misconduct; or

3-43      (b) An act or omission that constitutes a felony.

4-1  5.  This section applies to an act, error or omission occurring

4-2  on or after October 1, 2003, that allegedly caused the personal

4-3  injury or wrongful death.

4-4  6.  As used in this section, “noneconomic damages” includes

4-5  damages to compensate for pain, suffering, inconvenience,

4-6  physical impairment, disfigurement and other nonpecuniary

4-7  damages.

4-8  Sec. 5.  1.  If the trier of fact in an action for damages for

4-9  personal injury or wrongful death awards the plaintiff future

4-10  economic damages, the defendant shall pay the award of future

4-11  economic damages, at the election of the plaintiff:

4-12      (a) In a lump-sum payment that has been reduced to its

4-13  present value as determined by the trier of fact and approved by

4-14  the court; or

4-15      (b) In an annuity or other appropriate financial instrument

4-16  purchased by the defendant to provide periodic payments to the

4-17  plaintiff. The court shall not reduce an award of future economic

4-18  damages to its present value if the plaintiff elects to receive the

4-19  award pursuant to this paragraph.

4-20      2.  If the plaintiff elects to receive an award of future

4-21  economic damages in an annuity or other appropriate financial

4-22  instrument that provides periodic payments:

4-23      (a) The plaintiff shall select the provider of the annuity or

4-24  other appropriate financial instrument.

4-25      (b) The court shall determine the duration of the period during

4-26  which the periodic payments are to be received.

4-27      (c) Each party, before the entry of judgment, shall submit to

4-28  the court a plan specifying the person who is to be the recipient of

4-29  the periodic payments, the schedule for the periodic payments and

4-30  the amount of each periodic payment.

4-31      (d) After reviewing the plans, the court shall specify in its

4-32  judgment:

4-33          (1) The provider of the annuity or other appropriate

4-34  financial instrument;

4-35          (2) The duration of the period during which the periodic

4-36  payments are to be received;

4-37          (3) The person who is to be the recipient of the periodic

4-38  payments;

4-39          (4) The schedule for the periodic payments; and

4-40          (5) The amount of each periodic payment.

4-41      (e) The court shall ensure that the total amount of the periodic

4-42  payments is equal to the total amount of the future economic

4-43  damages awarded by the trier of fact and approved by the court.

4-44      (f) The defendant or the defendant’s insurer shall fund the

4-45  annuity or other appropriate financial instrument in full.

5-1  (g) Upon purchase of the annuity or other appropriate

5-2  financial instrument by the defendant or the defendant’s insurer,

5-3  the plaintiff shall:

5-4       (1) Execute a satisfaction of judgment or a stipulation for

5-5  dismissal of the claim with prejudice; and

5-6       (2) Release forever the defendant and the defendant’s

5-7  insurer, if any, from any obligation to make periodic payments

5-8  pursuant to the award.

5-9  3.  If the plaintiff dies before the final periodic payment of the

5-10  award is made:

5-11      (a) The unpaid balance of the award for loss of future

5-12  earnings reverts to the estate of the plaintiff; and

5-13      (b) The unpaid balance of the award for future expenses for

5-14  medical treatment, care or custody reverts to the defendant or the

5-15  defendant’s insurer.

5-16      4.  As used in this section, “future economic damages”

5-17  includes, without limitation, damages for loss of future earnings

5-18  and for future expenses for medical treatment, care or custody.

5-19      Sec. 6.  NRS 42.020 is hereby amended to read as follows:

5-20      42.020  1.  [Except as otherwise provided in subsection 2, in

5-21  any] In an action for damages for personal injury or wrongful

5-22  death caused by medical malpractice, the court shall, in addition to

5-23  any reduction in the amount of damages required pursuant to

5-24  section 3 of this act, reduce the amount of damages, if any, awarded

5-25  in the action [must be reduced] by the amount of any prior payment

5-26  made by or on behalf of the [provider of health care against whom

5-27  the action is brought] defendant to the injured person or to the

5-28  claimant to meet reasonable expenses [of] for medical treatment,

5-29  care[,] or custody, reasonable expenses for other essential goods or

5-30  services , or reasonable living expenses.

5-31      2.  [In any action described in subsection 1 in which liability for

5-32  medical malpractice is established or admitted, the court shall,

5-33  before the entry of judgment, hold a separate hearing to determine if

5-34  any expenses incurred by the claimant for medical care, loss of

5-35  income or other financial loss have been paid or reimbursed as a

5-36  benefit from a collateral source. If the court determines that a

5-37  claimant has received such a benefit, the court shall reduce the

5-38  amount of damages, if any, awarded in the action by the amount of

5-39  the benefit. The amount so reduced must not include any amount for

5-40  which there is a right of subrogation to the rights of the claimant if

5-41  the right of subrogation is exercised by serving a notice of lien on

5-42  the claimant before the settlement of or the entry of judgment in the

5-43  action. Notice of the action must be provided by the claimant to any

5-44  statutory holder of a lien.

6-1  3.  If future economic damages are awarded in an action for

6-2  medical malpractice, the court may, at the request of the claimant,

6-3  order the award to be paid:

6-4  (a) In a lump sum which has been reduced to its present value as

6-5  determined by the trier of fact and approved by the court; or

6-6  (b) Subject to the provisions of subsections 5 and 6 and the

6-7  discretion of the court, in periodic payments either by an annuity

6-8  purchased to provide periodic payments or by other means if the

6-9  defendant posts an adequate bond or other security to ensure full

6-10  payment by periodic payments of the damages awarded by the

6-11  judgment.

6-12  As used in this subsection, “future economic damages” includes

6-13  damages for future medical treatment, care or custody, and loss of

6-14  future earnings.

6-15      4.  If the claimant receives periodic payments pursuant to

6-16  paragraph (b) of subsection 3, the award must not be reduced to its

6-17  present value. The amount of the periodic payments must be equal

6-18  to the total amount of all future damages awarded by the trier of fact

6-19  and approved by the court. The period for which the periodic

6-20  payments must be made must be determined by the trier of fact and

6-21  approved by the court. Before the entry of judgment, each party

6-22  shall submit to the court a plan specifying the recipient of the

6-23  payments, the amount of the payments and a schedule of periodic

6-24  payments for the award. Upon receipt and review of the plans, the

6-25  court shall specify in its judgment rendered in the action the

6-26  recipient of the payments, the amount of the payments and a

6-27  schedule of payments for the award.

6-28      5.  If an annuity is purchased pursuant to paragraph (b) of

6-29  subsection 3, the claimant shall select the provider of the annuity.

6-30  Upon purchase of the annuity, the claimant shall:

6-31      (a) Execute a satisfaction of judgment or a stipulation for

6-32  dismissal of the claim with prejudice; and

6-33      (b) Release forever the defendant and his insurer, if any, from

6-34  any obligation to make periodic payments pursuant to the award.

6-35      6.  If the defendant posts a bond or other security pursuant to

6-36  paragraph (b) of subsection 3, upon termination of the payment of

6-37  periodic payments of damages, the court shall order the return of the

6-38  bond or other security, or as much as remains, to the defendant.

6-39      7.] As used in this section[:

6-40      (a) “Benefit from a collateral source” means any money, service

6-41  or other benefit which is paid or provided or is reasonably likely to

6-42  be paid or provided to a claimant for personal injury or wrongful

6-43  death pursuant to:

7-1       (1) A state or federal act which provides benefits for

7-2  sickness, disability, accidents, loss of income or workers’

7-3  compensation;

7-4       (2) A policy of insurance which provides health benefits or

7-5  coverage for loss of income;

7-6       (3) A contract of any group, organization, partnership or

7-7  corporation which provides, pays or reimburses the cost of medical,

7-8  hospital or dental benefits or benefits for loss of income; or

7-9       (4) Any other publicly or privately funded program which

7-10  provides such benefits.

7-11      (b) “Medical] , “medical malpractice” has the meaning ascribed

7-12  to it in NRS 41A.009.

7-13      Sec. 7.  Chapter 7 of NRS is hereby amended by adding thereto

7-14  a new section to read as follows:

7-15      1.  An attorney shall not contract for or collect a fee

7-16  contingent on the amount of recovery for representing a person

7-17  seeking damages in connection with an action in tort in excess of:

7-18      (a) Forty percent of the first $50,000 recovered;

7-19      (b) Thirty-three and one-third percent of the next $50,000

7-20  recovered;

7-21      (c) Twenty-five percent of the next $500,000 recovered; and

7-22      (d) Fifteen percent of the amount of recovery that exceeds

7-23  $600,000.

7-24      2.  The limitations set forth in subsection 1 apply to all forms

7-25  of recovery, including, without limitation, settlement, arbitration

7-26  and judgment.

7-27      3.  This section applies only to an action that is filed on or

7-28  after October 1, 2003.

7-29      4.  For the purposes of this section, “amount recovered”

7-30  means the net sum recovered by the plaintiff after deducting any

7-31  disbursements or costs incurred in connection with the action.

7-32  Costs related to medical expenses incurred by the plaintiff and

7-33  general and administrative expenses incurred by the attorney may

7-34  not be deducted as disbursements or costs.

7-35      Sec. 8.  Chapter 11 of NRS is hereby amended by adding

7-36  thereto a new section to read as follows:

7-37      1.  An action for product liability must be commenced:

7-38      (a) Not later than 6 years after the date of the initial purchase

7-39  of the product; or

7-40      (b) Not later than 10 years after the date of the manufacture of

7-41  the product,

7-42  whichever is later.

7-43      2.  This section applies only to a cause of action that is filed as

7-44  the result of an act, error or omission which allegedly occurred on

8-1  or after October 1, 2003 and which forms the basis for an action

8-2  for product liability.

8-3  3.  As used in this section, “product liability” means liability

8-4  for damages because of personal injury, death, emotional harm,

8-5  consequential economic damage or damage to property, including,

8-6  without limitation, damages resulting from the loss of the use of

8-7  property, caused by the manufacture, design, importation,

8-8  distribution, packaging, labeling, lease or sale of a product.

8-9  Sec. 9.  NRS 11.190 is hereby amended to read as follows:

8-10      11.190  Except as otherwise provided in NRS 125B.050 and

8-11  217.007, and section 8 of this act, actions other than those for the

8-12  recovery of real property, unless further limited by specific statute,

8-13  may only be commenced as follows:

8-14      1.  Within 6 years:

8-15      (a) An action upon a judgment or decree of any court of the

8-16  United States, or of any state or territory within the United States, or

8-17  the renewal thereof.

8-18      (b) An action upon a contract, obligation or liability founded

8-19  upon an instrument in writing, except those mentioned in the

8-20  preceding sections of this chapter.

8-21      2.  Within 4 years:

8-22      (a) An action on an open account for goods, wares and

8-23  merchandise sold and delivered.

8-24      (b) An action for any article charged on an account in a store.

8-25      (c) An action upon a contract, obligation or liability not founded

8-26  upon an instrument in writing.

8-27      3.  Within 3 years:

8-28      (a) An action upon a liability created by statute, other than a

8-29  penalty or forfeiture.

8-30      (b) An action for waste or trespass of real property, but when the

8-31  waste or trespass is committed by means of underground works

8-32  upon any mining claim, the cause of action shall be deemed to

8-33  accrue upon the discovery by the aggrieved party of the facts

8-34  constituting the waste or trespass.

8-35      (c) An action for taking, detaining or injuring personal property,

8-36  including actions for specific recovery thereof, but in all cases

8-37  where the subject of the action is a domestic animal usually included

8-38  in the term “livestock,” which has a recorded mark or brand upon it

8-39  at the time of its loss, and which strays or is stolen from the true

8-40  owner without his fault, the statute does not begin to run against an

8-41  action for the recovery of the animal until the owner has actual

8-42  knowledge of such facts as would put a reasonable person upon

8-43  inquiry as to the possession thereof by the defendant.

8-44      (d) Except as otherwise provided in NRS 112.230 and 166.170,

8-45  an action for relief on the ground of fraud or mistake, but the cause

9-1  of action in such a case shall be deemed to accrue upon the

9-2  discovery by the aggrieved party of the facts constituting the fraud

9-3  or mistake.

9-4  (e) An action pursuant to NRS 40.750 for damages sustained by

9-5  a financial institution because of its reliance on certain fraudulent

9-6  conduct of a borrower, but the cause of action in such a case shall be

9-7  deemed to accrue upon the discovery by the financial institution of

9-8  the facts constituting the concealment or false statement.

9-9  4.  Within 2 years:

9-10      (a) An action against a sheriff, coroner or constable upon

9-11  liability incurred by acting in his official capacity and in virtue of

9-12  his office, or by the omission of an official duty, including the

9-13  nonpayment of money collected upon an execution.

9-14      (b) An action upon a statute for a penalty or forfeiture, where the

9-15  action is given to a person or the state, or both, except when the

9-16  statute imposing it prescribes a different limitation.

9-17      (c) An action for libel, slander, assault, battery, false

9-18  imprisonment or seduction.

9-19      (d) An action against a sheriff or other officer for the escape of a

9-20  prisoner arrested or imprisoned on civil process.

9-21      (e) Except as otherwise provided in NRS 11.215, an action to

9-22  recover damages for injuries to a person or for the death of a person

9-23  caused by the wrongful act or neglect of another. The provisions of

9-24  this paragraph relating to an action to recover damages for injuries

9-25  to a person apply only to causes of action which accrue after March

9-26  20, 1951.

9-27      5.  Within 1 year:

9-28      (a) An action against an officer, or officer de facto to recover

9-29  goods, wares, merchandise or other property seized by the officer in

9-30  his official capacity[,] as tax collector, or to recover the price or

9-31  value of goods, wares, merchandise or other personal property so

9-32  seized, or for damages for the seizure, detention or sale of, or injury

9-33  to, goods, wares, merchandise or other personal property seized, or

9-34  for damages done to any person or property in making the seizure.

9-35      (b) An action against an officer, or officer de facto for money

9-36  paid to the officer under protest, or seized by the officer in his

9-37  official capacity[,] as a collector of taxes, and which, it is claimed,

9-38  ought to be refunded.

9-39      Sec. 10.  The amendatory provisions of sections 3, 5 and 6 of

9-40  this act apply only to an action that is filed on or after October 1,

9-41  2003.

 

9-42  H