HOUSE BILL REPORT
SSB 6048
As Amended by the House
BYSenate Committee on Judiciary (originally sponsored by Senators Talmadge, Nelson, Newhouse, McCaslin, Moore and Bottiger)
Revising provisions on civil actions and liabilities.
House Committe on Judiciary
Majority Report: Do pass. (12)
Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Hargrove, Heavey, Moyer, Niemi, Padden, Patrick, Schmidt, Scott, Wang and Wineberry.
House Staff:Charlie Gavigan (786-7340)
AS PASSED HOUSE APRIL 14, 1987
BACKGROUND:
Tort law has generally been developed by the courts on a case-by-case basis. The legislature has periodically intervened in order to bring about reforms deemed necessary by the legislature. In 1986, the legislature made substantial changes to tort law to create what the legislature felt was a more equitable distribution of the cost and risk of injury and increase the availability and affordability of insurance.
There are many areas that people argue need to be adjusted or reformed further. The Tort Reform Act of 1986 was reviewed by a task force appointed by the Insurance Commissioner. The task force recommended that several changes be made.
The areas discussed in general as needing further review include:
MANDATORY ARBITRATION is available in superior court in counties that have authorized arbitration and where the relief requested is only monetary and does not exceed $10,000. In counties where two-thirds of the judges have approved the limit is $25,000. Arbitrators shall be appointed based on rules adopted by the supreme court.
In order to obtain additional superior court judicial positions, counties must implement a mandatory arbitration program.
FRIVOLOUS LAWSUITS, claims, or defenses can result in the nonprevailing party paying additional expenses accrued by the prevailing party as a result of the frivolous action. Final judgment and written findings by the trial judge are required, which necessitates a post-trial motion.
THE RELEASE OF PATIENTS IN THE MENTAL HEALTH SYSTEM done in good faith and without gross negligence by employees of public or private agencies in the course of their official job responsibilities cannot lead to a criminal or civil action. These persons are immune from legal action taken against them.
IMMUNITY FOR ELECTED AND APPOINTED OFFICIALS under present law extends to elected officials of special purpose districts, school boards, and school board superintendents. A special purpose district is any governmental/public entity below a city or a county. Special purpose district officials are presently immune from civil liability for damages arising from actions within the scope of their official duties, except for tortious conduct. School boards and school district superintendents cannot be held civilly liable for any action within the scope of their employment unless it is gross negligence.
VOLUNTEER FIREMEN, POLICEMEN, AND EMERGENCY MEDICAL TECHNICIANS, or other uncompensated persons who render emergency medical care at the scene of an emergency are not liable for civil damages unless their acts or omissions are grossly negligent or constitute wilful or wanton misconduct. Compensation, scene of emergency, and other terms are defined in the current law.
A FEASIBILITY STUDY ON EXCESS INSURANCE is suggested be done by the state risk manager. The risk manager administers the state risk management office in the Department of General Administration.
CORPORATE AND COOPERATIVE DIRECTORS LIABILITY is addressed in a limited manner in present law. Generally, a corporation's liability is not limited and neither is a director's liability. However, any amounts that a corporate director or officer must pay because of acts that fall within the scope of employment or responsibility are indemnified (repaid) by the corporation.
The board of directors or officers of a nonprofit corporations are immune to civil liability by law for conduct within the scope of their official capacity unless the conduct constitutes gross negligence. This immunity does not include liability for duties owed to the nonprofit corporation or its shareholders.
CONSORTIUM is not specifically addressed in statutory law. Case law allows recovery for loss of consortium.
The contributory fault of one spouse is not imputed to the other spouse to diminish recovery in an action by the other spouse to recover damages for death or injury, except in cases by wrongful death.
LIMITATION OF ACTIONS - FELONY means that a person committing a felony cannot recover civil damages for wrongful death or injury if the death or injury was causally related to the commission of the felony.
AN INTOXICATION DEFENSE exists for a defendant where an intoxicated person attempts to recover damages for injury or death while being intoxicated that were caused by the defendant. This complete defense is available to a defendant where the state of intoxication of the plaintiff contributed more than 50 percent to the injury or death. A chemical analysis which shows an alcohol level in the blood of .10 percent or greater is conclusive proof of intoxication.
IMMUNITY FOR DIRECTORS OF NONPROFIT CORPORATIONS exists for a member of the board of directors or an officer from civil liability for any act or omission done in the scope of the director or officer's official capability unless the act or omission constitutes gross negligence or violates a duty owed to the corporation or shareholders of the corporation.
IMMUNITY FOR DIRECTORS OF HOSPITALS exists which prevents the director from being civilly liable for injuries resulting from health care administered by an authorized health care provider unless the authorization of the health care provider to provide services at the hospital constitutes gross negligence.
THE JUDICIAL COUNCIL consists of the Chief Justice and one other judge of the Supreme Court, two Court of Appeals judges, two superior court judges, eight members of the legislature, the dean of each law school in the state, eight members of the state bar, the attorney general, two court of limited jurisdiction judges, and one court clerk.
The duties of the council include surveying and studying the operation of the judicial system in the state, devising ways to simplify judicial proceedings, and to report to the governor and the legislature its recommendations for changes and improvements to the judicial system.
HEALTH CARE LIMITATIONS of action include a statute of limitation. A civil action for damages based on professional negligence after June 25, 1976, must be initiated within three years from the date of the injury or within one year of the discovery (or reasonably should have been discovered) whichever is later. However, the complaint must be initiated within eight years of the injury in all cases, although the statute is tolled (put on hold) if fraud, intentional concealment, or the improper presence of a foreign body (i.e., instrument) exists.
The knowledge of a custodial parent or guardian is imputed to a person under 18. Generally a statute of limitation is tolled for a minor until the minor turns 18.
A PHYSICIAN-PATIENT PRIVILEGE exists that precludes a physician from testifying about information obtained in the course of examination or treatment, except for the injury, neglect, or sexual abuse of a child. A plaintiff in a civil action for personal injury or wrongful death must elect whether to waive the physician-patient privilege. If the plaintiff does not waive the privilege, the claimant (plaintiff) cannot raise his or her physical or mental condition and cannot later waive the privilege.
THE REASONABLENESS OF ATTORNEYS FEES can be reviewed by a court upon petition by a named party in a tort action, except for health care cases where the court always determines the reasonableness of attorney's fees. The statutes list several consideration the court should use in determining reasonableness.
IN WORKER'S COMPENSATION CLAIMS the injured worker may seek recovery of damages from a third person if the third person contributed to the injury.
LIABILITY OF DESIGN PROFESSIONALS AND ARCHITECTS can be at issue if the design professionals or architects are providing services to a construction project but are not the primary parties in the contract. A worker injured on the job may attempt to recover damages from a third person (design professional or architect) involved in the project, which is a separate claim from workers compensation.
OFFERS OF SETTLEMENT, under current law, must be reviewed by the court for reasonableness.
SUMMARY:
Modifications are made to tort litigation procedures and to tort law. Some of these are technical, while others change substantive parts of tort law. These modifications are:
MANDATORY ARBITRATION dollar limits are increased to $15,000 and $35,000 where two-thirds of the superior court judges approve. Qualifications of an arbitrator include being a member of the state bar association for at least five years or being a retired judge. The parties can choose an arbitrator who is not a lawyer.
The requirement that an increase in superior court personnel be conditioned on setting up a mandatory arbitration program in a county is removed.
FRIVOLOUS LAWSUITS, claims, or defenses can be addressed by motion of the prevailing party. A final judgment is not necessary, but the motion must be made within 30 days from the termination of the action.
THE RELEASE OF PATIENTS IN THE MENTAL HEALTH SYSTEM provisions are extended to grant immunity to the state, local government, and evaluation and treatment facilities. Good faith requirements and an absence of gross negligence are necessary for the immunity to apply.
IMMUNITY FOR ELECTED AND APPOINTED OFFICIALS is repealed for the present groups now covered in law (special purpose district officials, school boards, and school superintendents). An appointed or elected public official (state, local, or special purpose) is immune from civil liability for any discretionary decision or omission within the persons scope of office, but liability will extend to tortious conduct.
VOLUNTEER FIREMEN, POLICEMEN, AND EMERGENCY MEDICAL TECHNICIANS and other persons have immunity from civil liability for uncompensated assistance at the scene of an emergency. The definition of compensation is expanded to include payment made to part-time volunteer and on-call volunteer personnel of any emergency response organizations (i.e., police or fire departments). The definition of scene of emergency includes hospitals, doctors' offices, and other places where medical persons practice or are employed.
A first responder (a person authorized to give emergency medical care) is included in the list of emergency medical technicians that may be immune from civil liability under specified circumstances.
A FEASIBILITY STUDY ON EXCESS INSURANCE is to be conducted by the state risk manager. The study is to determine the costs and benefits if the state provides excess insurance to political subdivisions. The study is to be submitted to the judicial committees of the House and Senate by December 31, 1987.
CORPORATION AND COOPERATIVE DIRECTORS LIABILITY to the corporation or its shareholders can be statutorily limited by including such provisions in the articles of incorporation. Liability cannot be eliminated for intentional misconduct by the director, a knowing violation of the law by the director, approving loans where a conflict of interest exists, or where the director receives an illegal benefit of money, property, or services.
Cooperative associations, including agricultural associations, are included under the limitation of liability afforded directors or officers of nonprofit corporations (no liability unless gross negligence exists or a duty to the corporation or shareholders is violated).
CONSORTIUM is added to wrongful death actions in imputing the contributory fault of one spouse to the other spouse. Therefore contributory fault of one spouse who is killed or injured will be imputed to the other spouse to reduce or eliminate damages for loss of consortium.
LIMITATIONS OF ACTIONS - FELONY is modified to limit causes of actions for injury or wrongful death by a person committing a felony only if the death or injury occurred at the time the felony was committed and was the proximate cause of the injury or death. Proximate cause basically means that the death or injury was a direct result of the action, with no independent or other significant event occurring to contribute to the injury or death, and without the action the injury or death would not have occurred. Generally, causation requires foreseeability, whereas proximate cause requires a policy decision by the court that it is appropriate for liability to attach.
AN INTOXICATION DEFENSE applies where the intoxication existed at the time of the injury or death and that the intoxication was a proximate cause of the injury or death and the intoxicated person was more than 50 percent at fault. Determination of intoxication is the same as determining driving while under the influence of intoxicating liquor or drugs (.10 percent alcohol level in the blood or under the influence as determined by other means).
IMMUNITY FOR DIRECTORS OF NONPROFIT CORPORATIONS only applies to the discretionary decisions of directors or officers within the scope of their responsibility.
IMMUNITY FOR DIRECTORS OF HOSPITALS is expanded to include civil actions for death of a patient from a health care provider approved to provide health care at the hospital unless the authorization constitutes gross negligence. Injuries must be personal injuries.
THE JUDICIAL COUNCIL is required to conduct studies and report its findings and recommendations to the judiciary committees of the House and Senate by January 1, 1988 on the benefits and detriments of the following subjects: (a) mandatory settlement conference in the superior court; (b) examination of jurors as part of the jury selection process; (c) mandatory appellate settlement conferences; (d) mandatory discovery conference in specific civil actions, and (e) a comprehensive state statute on offers of settlement.
In applying the statute of limitation in HEALTH CARE SERVICES, knowledge of a custodial parent or guardian imputed to a person under 18 will bar a claim for the minor to the same extent the claim of an adult is barred.
The knowledge of a custodial parent or guardian of a minor whose cause of action arose between June 25, 1976 and August 1, 1986, will be imputed to the minor from the effective date of this act.
THE PHYSICIAN-PATIENT PRIVILEGE is deemed waived 90 days after an action is filed.
IN REQUESTING REVIEW OF ATTORNEYS' FEES for reasonableness, any party charged with payment of the fees in a tort action can petition the court within 45 days of receipt of the attorneys final bill.
The terms of the fee agreement is added to the list of consideration the court should use in determining reasonableness of attorney's fees.
This applies to agreements entered into after the effective date of this act.
If an injured worker who received WORKERS' COMPENSATION seeks damages against a third person, the plaintiff (injured worker) must give notice to the Department of Labor and Industries or self-insurer who may file a notice of statutory interest in recovery for reimbursement of the worker compensation payments).
LIABILITY OF DESIGN PROFESSIONALS AND ARCHITECTS is limited if the design professional or architect is a third person retained to perform services on a construction project. A worker injured on a construction project may not seek damages from a design professional or architect unless the design professional or architect specifically assumes responsibility for safety practices or exercised control over the portion of the premises where the worker was injured.
Immunity does not extend to negligently prepared design plans and specifications.
OFFERS OF SETTLEMENT, which must be reviewed by the court, must be reasonable and the burden of proof regarding reasonableness is on the person requesting the settlement.
Fiscal Note: Not Requested.
Effective Date:The bill contains an emergency clause and takes effect immediately.
House Committee ‑ Testified For: Daniel B. Heid, Sunnyside City Attorney; Harold Fosso, State Farm Insurance; Anne Redmen, Washington State Bar Association; Pat Thibaudeau, Washington Community Mental Council; Kevin McMahon, Washington State Bar Association.
House Committee - Testified Against: None Presented.
House Committee - Testimony For: Adjustments are needed to the massive Tort Reform Act of 1986. The task force appointed by the Insurance Commissioner to review the Tort Reform Act has recommended some of the changes. This act will continue progress in tort reform by reducing court costs, improving the flow of litigation, and decreasing the existing court congestion.
House Committee - Testimony Against: None Presented.