SENATE BILL REPORT

SB 6048

BYSenators Talmadge, Nelson, Newhouse, McCaslin, Moore and Bottiger

Revising provisions on civil actions and liabilities.

Senate Committee on Judiciary

Senate Hearing Date(s):March 3, 1987; March 4, 1987

Majority Report:  That Substitute Senate Bill No. 6048 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Talmadge, Chairman; Halsan, Vice Chairman; McCaslin, Moore, Nelson, Newhouse.

Senate Staff:Dick Armstrong (786-7460)

                  March 5, 1987

AS REPORTED BY COMMITTEE ON JUDICIARY, MARCH 4, 1987

BACKGROUND:

The Tort Reform Act of 1986 has been reviewed by a task force appointed by the Insurance Commissioner.  The task force has recommended that several technical and substantive changes be made to the act to carry out its purpose and intent.

The Act did not directly address the issue of reducing the costs of litigation.  Legal commentators and other persons involved in the legal system are of the opinion that legislation is needed to reduce court costs, improve the flow of litigation, and decrease existing court congestion.

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.

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 architects for injuries to employees of subcontractors is limited by statute.  Liability remains for architects if responsibility for safety practices is assumed by contract or if the architect 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

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

Immunity For Directors of Nonprofit Corporations

The existing statute is amended to provide directors immunity for discretionary decisions performed in their official capacity.

The Immunity For Directors of Hospitals

The existing statute is clarified with technical corrections.

The Judicial Council

The Judicial Council is required to conduct studies on the following issues:  (1) settlement conferences; (2) examination of jurors; (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 imputed 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 all 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.

EFFECT OF PROPOSED SUBSTITUTE:

The substitute bill is the same as the bill as introduced with the following changes: (1) the statute which requires counties to have implemented a mandatory arbitration program to obtain additional superior court judicial positions is repealed; (2) when an employer or co-employee is alleged to be at fault in a third-party workers' compensation action, the Department of Labor and Industries is allowed to intervene to protect its statutory interests.

Fiscal Note:      none requested

Effective Date:Various sections, which relate primarily to amendments to the 1986 tort bill, have an emergency clause and take effect immediately.

Senate Committee - Testified: Representatives of the Marquardt Task Force; Washington State Trial Lawyers Association; Coalition For Liability Reform; Insurance companies; Washington State Bar Association; Counties; and Mental Health Facilities testified on similar provisions in other bills in the Committee