FINAL BILL REPORT

SSB 6048

PARTIAL VETO

                                   C 212 L 87

BYSenate Committee on Judiciary (originally sponsored by Senators Talmadge, Nelson, Newhouse, McCaslin, Moore and Bottiger)

Revising provisions on civil actions and liabilities.

Senate Committee on Judiciary

House Committe on Judiciary

SYNOPSIS AS ENACTED

BACKGROUND:

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 of tort law 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.

SUMMARY:

Mandatory Arbitration:  As of July 1, 1988, the mandatory arbitration ceiling for cases in superior court in counties which have authorized arbitration is increased from $10,000 to $15,000.  If two-thirds of the superior court judges in the county vote to increase the ceiling, the arbitration ceiling can be increased up to $35,000 from the present $25,000 level.  The minimum qualifications for arbitrators are established.

The statute which requires counties to have implemented a mandatory arbitration program to obtain additional superior court judicial positions is repealed.

Frivolous Lawsuits:  The frivolous lawsuit statute is clarified to carry out its purpose and intent.  A court may determine if an action was frivolous and advanced without reasonable cause upon either a pre-trial or post-trial motion by the prevailing party.

Release of Patients in Mental Health System:  The state, a unit of local government, and evaluation and treatment facilities are not civilly or criminally liable for the good faith release of persons held under the Involuntary Treatment Act, Chapter 71.05 RCW, if the release was done without gross negligence.

Immunity For Elected and Appointed Officials:  Appointed or elected officials and members of the governing body of a public agency are immune from liability for discretionary decisions performed within the course of their official duties.  Liability remains on the public agency for the tortious conduct of its officials.

Volunteer Firemen, Policemen and EMT:  Noncompensated part-time and on-call volunteers, such as firefighters, policemen and emergency response organizations, who provide emergency care at the scene of an emergency are not civilly liable for their acts or omissions unless such acts or omissions are grossly negligent.

Feasibility Study on Excess Insurance:  The State Risk Manager is to conduct or contract for a feasibility study on the costs and benefits of the State of Washington providing excess liability and property insurance to political subdivisions of the state.

Corporate Directors Liability:  Statutes on profit and nonprofit corporations, nonprofit cooperatives, and nonprofit associations are amended to allow the articles of incorporation to include a provision eliminating or limiting the personal liability of a director for damages caused by an action taken by the director in good faith.  Such provisions may not limit a director's liability for acts involving intentional misconduct, such as a knowing violation of the law or a knowing breach of the director's fiduciary duty to the corporation.

Consortium:  The contributory fault of a decedent is imputed to a claimant in an action for loss of consortium.

Liability For Design Professionals:  The liability of design professionals for injuries to employees of subcontractors is limited by statute.  Liability remains for design professionals if responsibility for safety practices is assumed by contract or if the design professional exercised control over the work area.

Limitation of Actions--Felony:  The existing statute is clarified regarding the commission of a felony and its relationship to the injury suffered.  It is a defense to an action for personal injury if the person was engaged in a felony that was a proximate cause of the injury.

Intoxication Defense:  A defense exists for a defendant where an intoxicated plaintiff attempts to recover damages for injuries incurred while intoxicated.

The existing statute is clarified regarding the relationship between the intoxication of a plaintiff and the occurrence which results in the plaintiff's injury.  It is a defense in an action for personal injuries if:  (1) the plaintiff was intoxicated; (2) the intoxication was a proximate cause of the injuries; and (3) the plaintiff was more than 50 percent at fault.

The Judicial Council:  The Judicial Council is required to conduct studies on the following issues:  (1) settlement conferences; (2) examination of jurors during the jury selection process; (3) appellate evaluation conferences; (4) discovery conferences; and (5) offers of settlement.

Health Care Limitations:  The statute of limitations on actions relating to health care is clarified.  A "window period" is established to ensure that minors do not have their actions for personal injuries eliminated because of the assumed knowledge of their parent.

Accelerated Waiver of the Physician-Patient Privilege:  The requirement for an affirmative act to waive the privilege within 90 days of filing the action is deleted.  The privilege is deemed to be waived 90 days after filing the lawsuit for personal injuries or wrongful death.

Attorney's Fees:  A petition for determination of the reasonableness of attorney's fees in tort actions must be filed within 45 days of the final billing.  The court is to review the terms of the fee agreement in making its determination of reasonableness.

Workers' Compensation Liens:  The provisions of law relating to third-party actions by persons covered by workers' compensation statutes are modified when an employer or co-employee is at fault.  The Department of Labor and Industries is to be notified of such a lawsuit and may intervene to protect its statutory interests.

Settlement Agreements:  The terms of a settlement agreement, which must be reviewed by a court, must be reasonable and the burden of proof regarding reasonableness is on the person requesting the settlement.

VOTES ON FINAL PASSAGE:

      Senate    48     1

      House 94   1 (House amended)

      Senate    37     1 (Senate concurred)

EFFECTIVE:April 29, 1987 (Sections 401, 402, 701-710, 901, 1001, 1101, 1201, 1401, 1501, 1601, 1602)

            July 26, 1987

            July 1, 1988 (Sections 101 and 102)

Partial Veto Summary:  The requirement that the Risk Manager conduct a feasibility study of liability insurance to be provided by the State of Washington to political subdivisions is vetoed.  (See VETO MESSAGE)