MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary A

By: Representatives Chaney, King, Barnett (116th), Cameron, Denny, Ellington, Formby, Janus, Johnson, Ketchings, Montgomery, Rotenberry, Saucier, Wells-Smith

AN ACT TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO LIMIT PUNITIVE DAMAGES AWARDS AND TO CREATE EXCEPTIONS TO THOSE LIMITATIONS; TO LIMIT RECOVERY OF NONECONOMIC DAMAGES; TO DEFINE "ECONOMIC" AND "NONECONOMIC" DAMAGES; TO AMEND SECTION 11-7-13, MISSISSIPPI CODE OF 1972, TO LIMIT RECOVERY OF NONECONOMIC AND PUNITIVE DAMAGES IN A WRONGFUL DEATH ACTION; TO AMEND SECTION 11-7-15, MISSISSIPPI CODE OF 1972, TO PROHIBIT CERTAIN NEGLIGENT PLAINTIFFS FROM RECOVERY; TO AMEND SECTION 11-11-3, MISSISSIPPI CODE OF 1972, TO CLARIFY VENUE OF ACTIONS AGAINST RESIDENTS OF MISSISSIPPI; TO AMEND SECTION 11-11-11, MISSISSIPPI CODE OF 1972, TO CLARIFY VENUE OF ACTIONS AGAINST NONRESIDENTS; TO AMEND SECTION 11-11-57, MISSISSIPPI CODE OF 1972, TO PROVIDE WHEN VENUE MAY BE CHANGED; TO AMEND SECTIONS 15-1-36 AND 15-1-49, MISSISSIPPI CODE OF 1972, TO INCORPORATE A STATUTE OF REPOSE IN THE STATUTES OF LIMITATIONS CONTAINED THEREIN; TO AMEND SECTION SECTION 15-1-59, MISSISSIPPI CODE OF 1972, TO LIMIT THE SAVING IN FAVOR OF PERSONS UNDER DISABILITIES; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO RESTRICT JOINT AND SEVERAL LIABILITY; TO CODIFY SECTION 11-11-21, MISSISSIPPI CODE OF 1972, TO PROVIDE WHERE A CAUSE OF ACTION ACCRUES IN THE STATE; TO CODIFY SECTION 11-11-23, MISSISSIPPI CODE OF 1972, TO PROVIDE WHEN A CAUSE OF ACTION ACCRUES OUTSIDE THE STATE; TO REPEAL SECTIONS 11-3-23 AND 11-3-25, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE ASSESSMENT OF A PENALTY ON CERTAIN JUDGMENTS APPEALED TO THE SUPREME COURT; TO REPEAL SECTIONS 11-11-5 AND 11-11-7, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR PROPER VENUE AGAINST RAILROADS AND CERTAIN OTHER COMPANIES AND AGAINST INSURANCE COMPANIES; TO REPEAL SECTION 11-11-13, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR PROPER VENUE IN ACTIONS AGAINST NONRESIDENT MOTORISTS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 11-1-65, Mississippi Code of 1972, is amended as follows:

11-1-65. (1) 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) 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.

(c) 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.

(d) 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.

(e) 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 defendant's financial condition and net worth; the nature and reprehensibility of the defendant's wrongdoing, at the time and under the circumstances when it was committed, 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; whether the defendant's conduct found to have caused harm to the plaintiff is at present continuing with respect to the plaintiff or other individuals; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. 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.

(f) (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. 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.

(g) 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.

(h) No award of punitive damages shall exceed the greater of two (2) times the amount of total economic and noneconomic damages awarded to the plaintiff in the action or Two Hundred Fifty Thousand Dollars ($250,000.00).

(i) Except as may be otherwise provided in paragraph (j) of this subsection, only one (1) award for punitive damages may be made against a defendant for the same act, decision, omission or course of conduct. In any action for harm caused by defect in a product, punitive damages may not be awarded against a defendant if such damages have been awarded in any prior action against that defendant for the same defect. For purposes of this section, identical defects in individual units of a manufacturer's products shall be deemed to be the same defect.

(j) The provision limiting awards for punitive damages as described in paragraph (i) shall not apply if the claimant proves by clear and convincing evidence that new evidence concerning the defendant's conduct justifies an award of additional punitive damages. New evidence means evidence not available to the claimant in the first action in which punitive damages were awarded.

(k) Except as otherwise provided in paragraph (m) of this section, punitive damages shall not be awarded against a defendant for any activity which is subject to regulation by any agency of the United States or the State of Mississippi, if the regulated activity was in compliance with applicable regulations of the United States and this state.

(l) Except as otherwise provided in paragraph (m) of this section, punitive damages shall not be awarded against a manufacturer or product seller if the aspect of the product's manufacture, design, formulation, inspection, testing, packaging, labeling or warning which caused the claimant's harm 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; or

(iv) Any state or local statute, ordinance, agency regulation, agency certification applicable to the place where the harm to the plaintiff allegedly occurred.

(m) The prohibition against awarding punitive damages in the circumstances described in paragraph (k) or (l) of this subsection shall not apply when the plaintiff proves by clear and convincing evidence that the defendant:

(i) Knowingly and in violation of applicable state or federal agency regulations withheld or misrepresented information required to be submitted to the agency, which information was material and relevant to the harm in question; or

(ii) Made an illegal payment to an official of the federal agency for the purpose of securing approval of the activity or product as described in paragraph (1) (iii) of this subsection.

(2) In any action for either personal injury, or wrongful death pursuant to Section 11-7-13, the prevailing plaintiff may be awarded compensatory damages for economic damages incurred by the injured plaintiff; and noneconomic damages suffered by the injured plaintiff not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00).

(a) "Economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, burial costs, loss of past, present or future earnings or earning capacity, loss of past, present or future income or profits, 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.

(b) "Noneconomic damages" means damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, loss of enjoyment of life, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages which are not objectively verifiable. It does not include any punitive damages.

(3) When an attorney is compensated on a contingent fee basis in any action for either personal injury or wrongful death, his contingent fees shall not exceed forty percent (40%) of the first Fifty Thousand Dollars ($50,000.00) recovered; Thirty-three and one-third percent (33 1/3%) of the next Fifty Thousand Dollars ($50,000.00) recovered; Twenty-five percent (25%) of the next Five Hundred Thousand Dollars ($500,000.00) recovered; and Fifteen percent (15%) of any amount recovered in excess of Six Hundred Thousand Dollars ($600,000.00). These limitations shall apply whether the recovery of damages is by settlement, arbitration, mediation or judgment, or whether the person for whom the recovery is made is an adult, a minor or a person of unsound mind. The amount recovered shall be computed by first deducting all disbursements for litigation expenses incurred in connection with the filing and prosecution of a personal injury action, and the final contingent fee shall be calculated on the aggregate sum of that amount, regardless of the number of personal injury claimants.

SECTION 2. Section 11-7-13, Mississippi Code of 1972, is amended as follows:

11-7-13. Whenever the death of any person shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. In no event shall any noneconomic damages awarded under this section exceed Two Hundred Fifty Thousand ($250,000.00). In no event shall any punitive damages awarded under this section exceed the greater of two (2) times the amount of the total of economic and noneconomic damages awarded to plaintiff or Two Hundred Fifty Thousand Dollars ($250,000.00).

This section shall apply to all personal injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death, and to all deaths caused by breach of warranty, either express or implied, of the purity and fitness of foods, drugs, medicines, beverages, tobacco or other articles or commodities intended for human consumption.

Any person entitled to bring a wrongful death action may assert or maintain a claim for any breach of expressed warranty or for any breach of implied warranty. A wrongful death action may be maintained or asserted for strict liability in tort or for any cause of action known to the law for which any person, corporation, legal representative or entity would be liable for damages if death had not ensued.

In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full blood and had been born to the adopting parents in lawful wedlock.

Nothwithstanding any other statute or provision of law, all actions for injuries producing death shall be filed in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue and, if the defendant is a domestic corporation, in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue. For purposes of this section, an action for injuries producing death occurs or accrues in the county in which the defendant or defendants committed the real, wrongful or negligent act or omission, whether the resulting death occurred in that county or not.

SECTION 3. Section 11-7-15, Mississippi Code of 1972, is amended as follows:

11-7-15. In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, including actions for damages caused by products, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, unless the negligence or fault of the person injured, or the owner of the property, or person having control of the property is equal to or greater than fifty percent (50%) of the proximate cause of the injury or damage for which recovery is sought, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

SECTION 4. Section 11-11-3, Mississippi Code of 1972, is amended as follows:

11-11-3. Civil actions against individual residents of Mississippi of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action accrued and, if the defendant is a domestic corporation, in the county in which said corporation has its principal place of business or in the county where the cause of action accrued, except where otherwise provided, and except actions of trespass on land, ejectment and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land or some part thereof is situated. If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to Section 11-11-17.

SECTION 5. Section 11-11-11, Mississippi Code of 1972, is amended as follows:

11-11-11. All civil actions for the recovery of damages brought against a nonresident or the representative of the nonresident in the state of Mississippi shall be commenced in the county in which the action accrued * * * .

SECTION 6. Section 11-11-57, Mississippi Code of 1972, is amended as follows:

11-11-57. When venue is proper as to any party still a defendant, it is proper as to all defendants. When a defendant who has allowed venue to attach in a county is dismissed as a party defendant, the remaining defendants shall be entitled to a transfer of venue to another county in which venue is proper. If there is more than one county in which venue is proper, the plaintiff is entitled to decide the county of venue.

SECTION 7. Section 15-1-36, Mississippi Code of 1972, is amended as follows:

15-1-36. (1) Except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

(2) Except as otherwise provided in subsection (3) of this section, if at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (1) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.

(3) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (1) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor's sixth birthday unless such minor shall have died.

(4) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time hereinbefore limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.

(5) When any person who shall be under the disabilities mentioned in subsections (2), (3) and (4) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under Section 15-1-55, Mississippi Code of 1972.

(6) For the purposes of subsection (2) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after the time a person has reached his sixth birthday.

(7) For the purposes of subsection (3) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after the time a person has reached his sixth birthday or from and after the time such person shall have a parent or legal guardian, whichever occurs later, unless such disability is otherwise removed by law.

(8) In no event may any action be commenced to recover damages for malpractice or professional negligence more than ten (10) years after the date of the alleged act, omission or negligence.

(9) The limitation established by this section as to a licensed physician, osteopath, dentist, hospital or nurse shall apply only to actions the cause of which accrued on or after July 1, 1976.

(10) The limitation established by this section as to pharmacists shall apply only to actions the cause of which accrued on or after July 1, 1978.

(11) The limitation established by this section as to podiatrists shall apply only to actions the cause of which accrued on or after July 1, 1979.

(12) The limitation established by this section as to optometrists and chiropractors shall apply only to actions the cause of which accrued on or after July 1, 1983.

(13) The limitation established by this section as to actions commenced on behalf of minors shall apply only to actions the cause of which accrued on or after July 1, 1989.

(14) The limitation established by this section as to the ten-year statute of repose applicable to all malpractice or professional negligence actions shall apply only to actions the cause of which accrued on or after July 1, 1998.

SECTION 8. Section 15-1-49, Mississippi Code of 1972, is amended as follows:

15-1-49. (1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.

(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

(3) The provisions of subsection (2) of this section shall apply to all pending and subsequently filed actions.

(4) In no event may any action be commenced to recover damages for actions to which this statute of limitation applies more than ten (10) years after the date of the alleged act, omission or negligence.

(5) Except as otherwise provided in subsections (6) and (7) of this section, if at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (1) of this section shall have expired, commence action on such claim at any time within three (3) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.

(6) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (1) of this section shall have expired, commence action on such claim at any time within three (3) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor's sixth birthday unless such minor shall have died.

(7) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time herein before limited shall have expired, commence action on such claim at any time within three (3) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.

(8) When any person who shall be under the disabilities mentioned in subsections (5), (6), and (7) of this section at the time which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person prescribed under Section 15-1-55.

(9) For the purposes of subsection (5) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after the time a person has reached his sixth birthday.

(10) For the purposes of subsection (6) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after the time a person has reached his sixth birthday or form and after such person shall have a parent or legal guardian, whichever occurs later, unless such disability is otherwise removed by law.

(11) The limitation established by this section as to the ten-year statute of repose applicable to all negligence actions shall apply only to actions the cause of which accrued on or after July 1, 1998.

SECTION 9. Section 15-1-59, Mississippi Code of 1972, is amended as follows:

15-1-59. If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years. The provisions of this section shall not be construed to expand or lengthen the limitations period applicable to persons under disabilities prescribed under Sections 15-1-36 and 15-1-49.

SECTION 10. 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.

(2) Except as may be otherwise provided in subsection (6) of this section, in any civil action based on fault, the liability of each defendant for damages shall be several only and shall not be joint; each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the trier of fact shall determine the total damages and shall also determine the percentage of fault of each party and nonparty, irrespective of whether such nonparty could have been made a party to the action, alleged to be at fault. The court, with regard to each defendant, shall multiply the total amount of damages by the percentage of each defendant's fault, and that amount shall be the maximum recoverable against that defendant.

(3)  * * * 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.

(4) Any defendant held jointly liable under this section shall have a right of contribution against fellow joint tort-feasors. A defendant shall be held responsible for contribution to other joint tort-feasors only for the percentage of fault assessed to such defendant.

(5) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.

(6) 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.

(7) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.

(8) 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 11. The following shall be codified as Section 11-11-21, Mississippi Code of 1972:

11-11-21. (1) A cause of action for wrongful death, bodily injury, libel, slander, defamation, malicious prosecution, breach of a professional duty or fraud accrues only in the county where the wrongful act first occurs, not in any subsequent county where the plaintiff may suffer additional injuries, damages or death.

(2) A cause of action for breach of contract accrues only in the county where the breach first occurs, not in any subsequent county where the plaintiff may suffer additional injuries, damages or death.

(3) A cause of action for the breach of any insurance contract insuring against the loss of real or personal property accrues only in the county where the damage to the insured real or personal property first occurs, not in any subsequent county where the property may suffer additional damages. Any other cause of action for the breach of any insurance contract accrues only in the county where the loss first occurs, not in any subsequent county where the plaintiff may suffer additional injuries, damages or death.

SECTION 12. The following shall be codified as Section 11-11-23, Mississippi Code of 1972:

11-11-23. (1) All civil actions brought by a resident of the State of Mississippi against a nonresident to recover damages of which the circuit court has original jurisdiction shall be commenced in the county in which the plaintiff resides, or, if the defendant is a nonresident corporation, in the county in which said corporation has its principal place of business.

(2) All civil actions brought by a nonresident of the State of Mississippi against another nonresident to recover damages of which the circuit court has original jurisdiction shall be commenced in the county in which the nonresident defendant's agent for service of process is located or in the county where the nonresident defendant is served with process.

SECTION 13. Section 11-3-23 and Section 11-3-25, Mississippi Code of 1972, which provide for the assessment of a penalty on the appeal of certain judgments to the Supreme Court, are repealed.

SECTION 14. Section 11-11-5 and Section 11-11-7, Mississippi Code of 1972, which provide for proper venue in actions against railroads and other companies, and against insurance companies, are repealed.

SECTION 15. Section 11-11-13, Mississippi Code of 1972, which provides for proper venue in actions for damages against nonresident motorists, is repealed.

SECTION 16. This act shall take effect and be in force from and after July 1, 1998, and shall apply to causes of action which accrue on or after July 1, 1998.