2004 Regular Session
To: Judiciary A
By: Representative Smith (39th), Akins, Aldridge, Arinder, Baker (74th), Baker (8th), Beckett, Bentz, Bondurant, Bounds, Capps, Carlton, Chism, Davis, Denny, Ellington, Fillingane, Formby, Frierson, Guice, Gunn, Hamilton (109th), Hamilton (6th), Howell, Hudson, Ishee, Janus, Jennings, Lott, Markham, Martinson, Masterson, Mayhall, McBride, Mims, Moody, Moore, Nicholson, Patterson, Read, Reed, Reeves, Robinson (84th), Rogers (14th), Rogers (61st), Rotenberry, Shows, Simpson, Smith (59th), Snowden, Staples, Stevens, Turner, Upshaw, Vince, Weathersby, Wells-Smith, Woods, Zuber
AN ACT TO AMEND SECTION 11-11-3, MISSISSIPPI CODE OF 1972, TO REVISE VENUE IN GENERAL CIVIL ACTIONS; TO AMEND SECTION 11-1-60, MISSISSIPPI CODE OF 1972, TO PROVIDE LIMITATIONS ON NONECONOMIC DAMAGES IN ALL CIVIL ACTIONS; TO AMEND SECTION 11-1-63, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PRODUCT SELLER OTHER THAN A MANUFACTURER SHALL NOT BE LIABLE FOR A LATENT DEFECT IF THE SELLER IS A MERE CONDUIT WHO PURCHASED THE PRODUCT FROM A REPUTABLE MANUFACTURER; TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO PROHIBIT MULTIPLE PUNITIVE DAMAGE AWARDS FOR THE SAME CONDUCT OF A DEFENDANT EXCEPT IN CERTAIN CASES, AND TO PROHIBIT PUNITIVE DAMAGES AGAINST A DEFENDANT FOR ANY REGULATED ACTIVITY CONDUCTED IN COMPLIANCE WITH FEDERAL AND STATE REGULATIONS; TO AMEND SECTION 11-1-66, MISSISSIPPI CODE OF 1972, TO REVISE THE IMMUNITY OF PREMISE OWNERS FROM CIVIL LIABILITY; TO AMEND SECTION 11-15-1, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE VALIDITY AND ENFORCEABILITY OF AN ARBITRATION AGREEMENT; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO REVISE THE LIMITATION OF JOINT AND SEVERAL LIABILITY FOR DAMAGES CAUSED BY TWO OR MORE PERSONS; TO REPEAL SECTION 11-1-64, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THE PROCEDURE FOR DISMISSING A DEFENDANT WHOSE LIABILITY IS BASED SOLELY ON HIS STATUS AS A SELLER IN THE STREAM OF COMMERCE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-11-3, Mississippi Code of 1972, is amended as follows:
11-11-3. (1) (a) Venue for civil actions of which the circuit court has original jurisdiction shall be * * * in the county where the first act or omission giving rise to the cause of action occurred * * *.
(b) In any civil action where more than one (1) plaintiff is joined, each plaintiff shall independently establish proper venue and it is not sufficient that venue is proper for other plaintiffs joined in the civil action.
(c) In any civil action where more than one (1) defendant is named, venue must be proper as to each and every defendant and it is not sufficient that venue is proper for other defendants joined in the civil action.
(d) Where multiple claims or causes of action are combined in one (1) lawsuit, venue must be proper as to each separate claim or cause of action.
(e) If the venue is improper as to any claim or cause of action by any plaintiff against any defendant, then the claims involving that plaintiff and defendant that are not in the proper venue shall be severed and transferred to the county where venue is proper as to such claim or cause of action. If there is no proper venue for a claim for any reason, including because the first act or omission giving rise to a claim did not occur within a Mississippi county, such claim shall be dismissed without prejudice.
(2) A nonresident of the state may not bring an action in a court of this state unless all or a substantial part of the acts or omissions giving rise to the claim asserted occurred in this state.
(3) (a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county within this state, the court shall decline to exercise jurisdiction under the doctrine of forum nonconveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county within the state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum nonconveniens, the court shall give consideration to the following factors:
(i) Relative ease of access to sources of proof;
(ii) Availability and cost of compulsory process for attendance of unwilling witnesses;
(iii) Possibility of viewing of the premises, if viewing would be appropriate to the action;
(iv) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his remedy;
(v) Administrative difficulties for the forum courts;
(vi) Existence of local interests in deciding the case at home; and
(vii) Plaintiff's choice of forum should rarely be disturbed.
(b) A court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, the defendant waives the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed. The court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff in another state of the United States, the plaintiff may elect that the plaintiff and the defendant may rely on responses to discovery already provided under the Mississippi Rules of Civil Procedure, plus any additional discovery that may be conducted under the rules of civil procedure in another state, or use responses to discovery already provided and conduct additional discovery as permitted under the rules of civil procedures in the other state.
(c) To comply with paragraph (a) of this subsection in relation to an action that involves both claims that would and would not be more properly heard in a forum outside this state or in a different county within this state, a court shall consider each claim individually and shall sever from the action the claims that are subject to paragraph (a) of this subsection.
SECTION 2. Section 11-1-60, Mississippi Code of 1972, is amended as follows:
11-1-60. (1) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Noneconomic damages" means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, * * * other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term "noneconomic damages" shall not include * * * punitive or exemplary damages.
(b) "Actual economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
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(2) (a) Regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury, in any claim for injury the aggregate amount recoverable for noneconomic damages by the plaintiff shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00) for causes of action filed on or after July 1, 2004.
(b) The jury shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.
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(3) Nothing in this section shall be construed to impose a limitation on * * * actual economic damages.
SECTION 3. Section 11-1-63, Mississippi Code of 1972, is amended as follows:
11-1-63. Subject to the provisions of Section 11-1-64, in any action for damages caused by a product except for commercial damage to the product itself:
(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.
(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.
(c) (i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a)(i)2 of this section, the manufacturer or seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller, the manufacturer or seller knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.
(ii) An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product.
(d) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer or seller shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.
(e) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer or seller shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.
(f) In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) The manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and
(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.
(g) (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same; or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
(ii) Subparagraph (i) shall not apply unless the seller has given prompt notice of the suit to the manufacturer within ninety (90) days of the service of the complaint against the seller.
(h) In any action alleging that a product is defective pursuant to paragraph (a) of this section, a product seller other than a manufacturer shall not be liable for a latent defect if the seller is a mere conduit who purchased the product from a reputable manufacturer. It is the intent of this section to insulate innocent sellers who are not actively negligent from forum driven lawsuits. A product seller shall not be considered to have failed to exercise reasonable care with respect to a product based upon an alleged failure to inspect the product if there was no reasonable opportunity to inspect the product, or if the inspection in the exercise of reasonable care would not have revealed that the product was defective.
(i) There is a rebuttable presumption that a product is free from any defect or defective condition where the alleged defect in the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were in conformity with government standards established for that industry which were in existence at the time the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were adopted.
(j) For purposes of this section, the term "product" shall include real estate and the term "seller" shall include real estate brokers/licensees.
(k) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 4. Section 11-1-65, Mississippi Code of 1972, is amended as follows:
11-1-65. (1) For the purposes of this section, "compensatory" means the amount of money awarded to a party to compensate the party for his or her actual, economic and noneconomic damages.
(2) In any action in which punitive damages are sought:
(a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
(b) Punitive damages shall not be awarded against a defendant for any activity that is subject to regulation by any governmental entity, if the regulated activity was in compliance with applicable regulations of the governmental entity.
(c) Punitive damages shall not be awarded against any defendant based upon a product's manufacture, design, formulation, inspection, testing, packaging, inherent danger, labeling or warning which caused the claimant's harm and which complied with:
(i) Any federal statute in effect at the time the product was produced;
(ii) Any administrative regulation in effect at the time the product was produced that was promulgated by an agency of the federal government which had responsibility to regulate the safety of the product or to establish safety standards for the product pursuant to a federal statute;
(iii) Any approval or certification made by an agency of the federal government before the product was marketed;
(iv) Any state or local statute, ordinance, agency regulation, agency certification applicable to the place where the harm to the plaintiff allegedly occurred.
(d) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
(e) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.
(f) The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount. Only one (1) award of punitive damages may be recovered in this state from a defendant, regardless of the number of claimants who may be harmed by the same or similar repetitive act or omission, except in the case of a defendant who, subsequent to the entry of a judgment imposing liability for an act or omission, persists in the same or similar conduct thereby giving rise to additional causes of action.
(g) In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: * * * the nature and reprehensibility of the defendant's wrongdoing, for example, the impact of the defendant's conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to conceal such misconduct; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. Financial condition and net worth of the defendant shall only be considered in mitigation of any award. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.
(h) (i) Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others.
(ii) In determining whether the award is excessive, the court shall take into consideration the following factors:
1. Whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred;
2. The degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct;
3. In mitigation, the financial condition and net worth of the defendant; and
4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct. (3) The seller of a product other than the manufacturer shall not be liable for punitive damages unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same; or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
(4) (a) In any civil action where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed three (3) times the compensatory damages awarded to the plaintiff; however, in no event shall an award of punitive damages exceed the following:
(i) Ten Million Dollars ($10,000,000.00) for a defendant with a net worth of more than One Billion Dollars ($1,000,000,000.00);
(ii) Seven Million Five Hundred Thousand Dollars ($7,500,000.00) for a defendant with a net worth of more than Seven Hundred Fifty Million Dollars ($750,000,000.00) but not more than One Billion Dollars ($1,000,000,000.00);
(iii) Five Million Dollars ($5,000,000.00) for a defendant with a net worth of more than Five Hundred Million Dollars ($500,000,000.00) but not more than Seven Hundred Fifty Million Dollars ($750,000,000.00);
(iv) Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) for a defendant with a net worth of more than One Hundred Million Dollars ($100,000,000.00) but not more than Five Hundred Million Dollars ($500,000,000.00);
(v) Two Million Five Hundred Thousand Dollars ($2,500,000.00) for a defendant with a net worth of more than Fifty Million Dollars ($50,000,000.00) but not more than One Hundred Million Dollars ($100,000,000.00); or
(vi) Two percent (2%) of the defendant's net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less.
(b) For the purposes of determining the defendant's net worth in paragraph (a), the amount of the net worth shall be determined in accordance with Generally Accepted Accounting Principles.
(c) The limitation on the amount of punitive damages imposed by this subsection (3) shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict.
(d) The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant:
(i) If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or
(ii) While the defendant was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription.
(e) An employer or principal shall not be held liable for compensatory and punitive damages for any act or omission committed by an employee or agent acting outside the scope of, or contrary to, such person's employment or responsibility as an agent or employee.
(4) Nothing in this section shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur where appropriate.
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SECTION 5. Section 11-1-66, Mississippi Code of 1972, is amended as follows:
11-1-66. (1) No owner, occupant, lessee or managing agent of property shall be civilly liable for failing to prevent or failing to deter any act or omission committed by another person upon such property or premises that is a reckless, wanton, intentionally wrongful, illegal or criminal act.
(2) No owner, occupant, lessee or managing agent of property shall be liable for the death or injury of an independent contractor or his employees resulting from dangers that the contractor knew or reasonably should have known.
SECTION 6. Section 11-15-1, Mississippi Code of 1972, is amended as follows:
11-15-1. (1) All persons, except infants and persons of unsound mind, may, by instrument of writing, submit to the decision of one or more arbitrators any controversy which may be existing between them, which might be the subject of an action, and may, in such submission, agree that the court having jurisdiction of the subject matter shall render judgment on the award made pursuant to such submission. In such case, however, should the parties agree upon a court without jurisdiction of the subject matters of the award, the judgment shall be rendered by the court having jurisdiction in the county of the residence of the party, or some one of them, against whom the award shall be made.
(2) A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract and not inconsistent with the provisions of this subsection. Unless otherwise stated in writing in the agreement, arbitration agreements are binding upon successors in interest, heirs at law, beneficiaries and wrongful death beneficiaries. This act also applies to arbitration agreements between employers and employees or between their respective representatives, unless otherwise provided in the agreement.
SECTION 7. Section 85-5-7, Mississippi Code of 1972, is amended as follows:
85-5-7. (1) As used in this section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. "Fault" shall not include any tort which results from an act or omission committed with a specific wrongful intent.
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(2) Except as otherwise provided in subsection (4) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.
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(3) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
(4) Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.
(5) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault, without regard to whether the joint tort-feasor is immune from damages. Fault allocated to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor.
(6) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.
SECTION 8. Section 11-1-64, Mississippi Code of 1972, which provides the procedure for dismissing a defendant whose liability is based solely on his status as a seller in the stream of commerce, is hereby repealed.
SECTION 9. If any provision of this act is held by a court to be invalid, such invalidity shall not affect the remaining provisions of this act, and to this end the provisions of this act are declared severable.
SECTION 10. This act shall take effect and be in force from and after July 1, 2004, and shall apply to all causes of action filed on or after that date.